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Steele Hays, Justice.
Ronnie Lee Harrison was found guilty of the rape of a 19 year old woman in a Fort Smith laundromat. The jury recommended a life sentence and a $5,000.00 fine which the court imposed. Appellant alleges five points for reversal. We find no error and affirm the judgment.
When viewed in the light most favorable to the appellee, the proof was that about 11:00 p.m. on April 9,1981, the victim observed a man she later identified as the appellant park his car and enter the lighted laundromat where she was folding her laundry. As no one else was present, she watched the appellant go to the coke machine and to the restroom where he stayed a few minutes. He came up behind her, put his hand over her mouth and pulled her into the restroom. He forced her to undress and lie on the floor, where the assault occurred. He left immediately and she called the police and had them come to her apartment. She was badly frightened and upset when the police interviewed her. Although there was no light in the restroom, the victim said she could see her assailant’s face from the reflection from the moon. She described him as being approximately 25 years of age, 5 feet 11 inches tall, weighing around 160 pounds with medium length blondish-brown hair and small brown eyes, wearing a cowboy hat. The appellant was 21 years old, 5 feet 1VA inches tall, weighed 195 pounds and had medium length blondish-brown hair.
After describing the attack and her assailant, the victim went with the police to the hospital for a medical examination. Along the way they detoured to a shopping center parking lot where the appellant was being detained as a suspect. Both the appellant and his car generally matched the description given by the victim. While on the parking lot the victim remained in the police car about 20 feet away from the appellant. He had on a green cap instead of the cowboy hat worn at the laundromat. The victim was unable to identify the appellant as her assailant at this confrontation, which occurred approximately two hours after the attack and while she was described as still visibly shaken and upset.
Four days later, the victim was shown photographs of five individuals, including the appellant, whom she readily identified as her assailant. She also identified a shirt recovered from appellant which she recognized as the one worn by the man who raped her. Ms. Carolyn Thomas, with whom appellant was living at the time, testified that on April 9 the appellant left the apartment about 10:00 p.m. dressed in a western shirt, cowboy hat, boots and jeans, which attire matched the description by the victim. Ms. Thomas said the shirt was the same one the appellant had worn when he left the apartment that night. She testified the appellant admitted to her he had raped a woman in the laundromat.
On April 14 appellant was arrested in Mena, Arkansas, and returned to Fort Smith by Detective Mike Brooks of the Fort Smith Police. After being given his Miranda rights and signing a waiver form, appellant made a full confession corroborating many of the details given by Ms. Thomas and by the victim. At trial the victim’s identification of the appellant as the attacker was unequivocal.
First appellant contends the trial court erred in not suppressing the victim’s in-court identification of the appellant, as being tainted by the confrontation on the parking lot shortly after the attack. He also contends the identification procedure was unconstiutionally unreliable and suggestive. Following a hearing, the trial court denied appellant’s motion to suppress identification testimony. On appellate review, a trial court’s decision on the admissibility of an identification should not be reversed unless, viewing the totality of the circumstances, it is clearly erroneous. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); Hinton v. State, 260 Ark. 42, 537 S.W.2d 800 (1976). In James & Elliot v. State, 270 Ark. 596, 605 S.W.2d 448 (1980), we stated at 600:
It is the likelihood of misidentification that taints the out of court identification process. In determining whether an in-court identification is tainted by pretrial occurrences, we consider the totality of the circumstances. In doing so, we consider the opportunity of the identifying witness to observe the accused at the time of the criminal act; the lapse of time between the occurrences and the identification; any inconsistencies of the description given by the witness; whether there was prior misidentification; the facts surrounding the identification; and all matters relating to the identification process. Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978). We have stated reliability is the linchpin in determining the admissibility of identification testimony. In the determination of the admissibility we consider the totality of the circumstances. Lindsey & Jackson v. State, 264 Ark. 430, 572 S.W.2d 145 (1978). In Neil v. Biggers, 409 U.S. 188 (1973), it was held that a “show up” rather than a line-up does not violate a defendant’s constitutional right unless there are other circumstances rendering the identification unreliable.
The victim testified that her in-court identification of the appellant was based upon her recollection of the crime and independent of the parking lot confrontation. Furthermore, there was no substantial likelihood of misidentification, as there was independent evidence of his identity. Kaestel v. State, 274 Ark. 550, 626 S.W.2d 940 (1982). The appellant’s confession to Detective Brooks and his admission to Carolyn Thomas constitute strong and convincing evidence of his identity independent of the victim’s testimony.
Any question that might have arisen from the victim’s failure to identify the appellant in the parking lot confrontation was one of reliability and is normally for the jury to decide. In Watkins v. Sowders, 449 U.S. 341 (1981), the United States Supreme Court stated at 347, 348:
It is the reliability of identification evidence that primarily determines its admissibility, Manson v. Brathwaite, 432 U.S. 98, 113-114; United States ex rel Kirby v. Sturges, 510 F.2d 397, 402-404 (CA7 1975) (Stevens, J.). And the proper evaluation of evidence under the instructions of the trial judge is the very task our system must assume juries can perform. Indeed, as the cases before us demonstrate, the only duty of a jury in cases in which identification evidence has been admitted will often be to assess the reliability of that evidence. Thus the Court’s opinion in Manson v. Brath waite approvingly quoted Judge Leventhal’s statement that,
“[wjhile identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart — the ‘integrity’ — of the adversary process.
“Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification — including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.” 432 U.S. 98, 114, n. 4 quoting Clemons v. United States, 133 U.S. App. D.C. 27, 48, 408 F.2d 1230, 1251 (1968).
Looking at the totality of the circumstances, we cannot say the trial court’s ruling to admit the victim’s identification testimony was clearly erroneous.
Next, appellant argues two points together: The trial court erred in not suppressing appellant’s confession as a violation of the Fourteenth Amendment of the United States Constitution and Article 2, § 8 of the Arkansas Constitution; and second, in not clearly ruling the confession was involuntary. Taking the second point first, the record unmistakably shows the trial court ruled the statement was voluntary. In denying appellant’s motion to suppress, the court said, “Motion to Suppress Statements will be overruled.” (T. 85).
A review of the trial court’s determination that a confession is voluntary is based on the totality of the circumstances and will not be reversed unless clearly against the preponderance of the evidence. Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975). The appellant contends Detective Brooks fabricated the confession and psychologically coerced him into signing it by telling him that mental health services would be forthcoming “when we are able to acquire the services of an attorney.” (T. 81). Detective Brooks’ testimony refuted appellant’s allegations of coercion and of any fabrication. Detective Brooks’ testimony is bolstered by Ms. Thomas’ testimony as to a confession prior to his arrest. Where the voluntariness of a confession is in issue, any conflict in the testimony of different witnesses is for the trial court to resolve based on the credibility of witnesses. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). Apparently this conflict was resolved in the State’s favor and we see no reason for the court’s determination to be disturbed.
Another contention is his motion for a mistrial should have been granted because the prosecuting attorney’s closing argument contained a comment vouching for the veracity of a witness. The comment was:
Now, if you believe the defendant’s version, that Mike Brooks promised him that he would never get the penitentiary on a rape case, which I’m certain Mike Brooks denied giving and I know he knows better than that, but he has denied that. . . . (T. 296).
After denying the motion for a mistrial, the trial court admonished the jury as follows:
I will remind the jury that any statements or remarks of attorneys having no basis in the evidence should be disregarded by you. (T. 297).
The test is whether there was a manifest abuse of discretion by the judge in failing to act properly to an objection to improper remarks by the prosecutor. Shaw v. State, 271 Ark. 926, 611 S.W.2d 522 (1981). We cannot say the trial judge abused his discretion in denying a motion for a mistrial. The prosecutor’s remark does not seem calculated and the judge promptly admonished the jury to disregard the remark. In Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979), we stated at 332, 333:
The trial judge has a very broad latitude of discretion in supervising and controlling the arguments of counsel and his action is not subject to reversal unless there is manifest gross abuse of that discretion or the matter complained of is a statement of the attorney’s opinion made only to arouse passion and prejudice of the jury, and which necessarily has that effect. Parrott v. State, 246 Ark. 672, 439 S.W.2d 924; Stanley v. State, 248 Ark. 787, 454 S.W.2d 72; Perry v. State, 255 Ark. 378, 500 S.W.2d 387; Willis v. State, 220 Ark. 965, 251 S.W.2d 816. ... It is also significant that the trial judge had instructed the jury that closing arguments of attorneys are not evidence and that arguments having no basis in the evidence should be disregarded. See Stanley v. State, supra.
Finally, appellant argues, without citing authority, the trial court erred in denying his motion for a mistrial based on the following objection during the cross examination of the rape victim:
Q: Are you living now at the same place you were living at the time?
PROSECUTING ATTORNEY: Your Honor, unless there is some purpose for this we would rather she not say what address she was living at. (T. 181).
The prosecuting attorney based his objection on relevancy grounds. Appellant now contends this objection was untimely and prejudicial. At trial when given the opportunity to show how the question was relevant, the appellant chose to withdraw the question. Under the circumstances of this case, we totally fail to see any prejudice so great as to require the drastic remedy of a mistrial. See Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979).
Affirmed. | [
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Darrell Hickman, Justice.
A Dallas County jury returned a verdict for $15,000 against Billy Puterbaugh. The verdict was reduced to judgment on June 19, 1979. Puterbaugh filed a timely notice of appeal and a motion for a new trial. A hearing on the motion for a new trial was conducted on August 27, 1979. On December 30, 1980, sixteen months after the hearing, Judge Melvin Mayfield denied the motion.
Puterbaugh states, and it is not refuted, that he only learned of the order through a conversation with a local attorney on April 6,1981. On May 19,1981, Puterbaugh filed a motion to have the j ury verdict set aside. A hearing was had on that motion on August 5, 1981, before Circuit Judge Don Gillaspie, Judge Mayfield’s successor. On August 21, 1981, Puterbaugh amended his motion to request both that the jury verdict be set aside and that the denial of the motion for a new trial be set aside because of lack of notice. Judge Gillaspie entered an order on September 21, 1981, which denied the motion to set aside the judgments, and ruled that Puterbaugh failed to demonstrate any unavoidable casualty, because he had failed to show that he was not negligent. From that ruling comes this appeal.
At the hearing before Judge Gillaspie, the clerk of the court when Judge Mayfield’s December order was entered, testified that Judge Mayfield mailed a copy of his order to Puterbaugh’s counsel on the day it was entered. She said that the judge addressed the envelope himself, using the address for counsel shown on all the correspondence and pleadings in the case file.
The issue before us is whether the trial judge abused his discretion in finding that Puterbaugh was not the victim of an unavoidable casualty. Davis v. McBride, 247 Ark. 895, 448 S.W.2d 37 (1969); ARCP Rule 60 (c) (7). We cannot say the judge was wrong in his determination and, therefore, we affirm.
There was evidence that neither Puterbaugh nor his counsel made any inquiry as to the status of the motion for a new trial in the sixteen months between the hearing and the entry of the order denying the motion, or in the four months between the time the order was entered and Puterbaugh got actual notice of the order. As we said in Davis v. McBride, supra:
Parties served with summons must thereafter take notice of the pendency of the suit and subsequent proceedings. A party seeking relief against a judgment on the ground of an unavoidable casualty must show that he has been diligent and without negligence.
And, while there may have been no actual notice to Puterbaugh or his counsel, Puterbaugh did learn of the order on April 6, 1981, and waited over thirty days to challenge the order.
Puterbaugh argues that Judge Gillaspie refused to set aside Judge Mayfield’s order because the motion for relief was not filed within thirty days after Puterbaugh got actual notice of the order. No doubt that was a consideration but Judge Gillaspie found:
That the defendants have failed to demonstrate an unavoidable casualty or misfortune preventing appeal in that more than thirty (30) days elapsed between the time that actual and admitted knowledge of the entry of the December 30, 1980, Order was received by the defendants and the filing of their Motion for Relief. Clearly defendants have demonstrated a lack of dili gence in these proceedings since entry of the original judgment.
We interpret those findings to mean that the judge did not find that Puterbaugh was without negligence, and, therefore, he was not entitled to relief on the ground of unavoidable casualty. That was a decision within the j udge’s discretion and to overrule it we would have to find an abuse of discretion — a finding we cannot make.
Affirmed. | [
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George Rose Smith, Justice.
This suit was tried in the court below as a test case to determine whether an insurance policy covering loss caused by hail includes loss caused by sleet. The Court of Appeals certified the case to us as presenting an issue of public interest, because a number of other pending cases may be affected by the decision. Rule 29 (4) (b).
The plaintiff Southall, the insured, introduced proof to show that on January 11,1978, sleet fell all day long and into the night. The next morning Southall found that the accumulation of about four inches of sleet on top of his chicken house had caused it to collapse. In this suit upon the policy the court instructed the jury that the term “hail” as used in the policy should be given the meaning ordinarily applied to that term in the everyday affairs of life. The jury’s verdict was for the insurance company.
The extended-coverage section in the policy provides that “the coverage of this policy is extended to include direct loss by . . . hail. ...” Later in the same section is this limitation: “Provisions Applicable Only to Windstorm and Hail: This Company shall not be liable for loss caused directly or indirectly by (a) frost or cold weather or (b) ice (other than hail)
At the trial there was undisputed testimony that the word “hail” includes large hail, small hail, winter hail, and sleet. A witness employed by the Weather Service testified that hail is so defined in á recognized meteorological dictionary. Webster’s Second New international Dictionary (1939) is to the same effect, subdividing hail into summer hail and winter hail. In a case directly in point it was held that a policy covering loss by hail includes loss by sleet. Evana Plantation v. Yorkshire Ins. Co., 214 Miss. 321, 58 So. 2d 797 (1952). No case to the contrary is cited. In fact, at the trial the appellee’s vice-president conceded on the witness stand that the sleet on the roof of the plaintiff’s chicken house was small hail.
The trial court was in error in instructing the jury that . the term “hail” was to be given its everyday meaning. An insurance policy is to be construed strictly against the insurer, who chooses its language. The construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence. Ark. Rock & Gravel Co. v. Chris-T-Emulsion, 259 Ark. 807, 536 S.W.2d 724 (1976); Security Ins. Co. v. Owen, 252 Ark. 720, 480 S.W.2d 558 (1972). In the interpretation of a contract negotiated between individuals no doubt there might be conflicting testimony presenting an issue of credibility for the jury with respect to the meaning of the language used, but there was no such issue in this case. The court should, if appropriate, have instructed the jury that the word “hail” as used in the policy included sleet.
The appellee’s vice-president testified that he construed a “direct loss” by hail to mean only the damage caused by the initial impact of the hail, but we have held that a direct loss is one proximately caused by the hazard insured against. Farmers Union Mut. Ins. Co. v. Blankenship, 231 Ark. 127, 328 S.W.2d 360 (1959). If the weight of the hail damaged the chicken house, the hail was the proximate cause of the loss, absent some other possible cause. It is also argued that the policy did not cover loss caused by ice, but that argument is refuted by the language we have quoted, that the company shall not be liable for loss caused directly or indirectly by ice other than hail.
The j udgment must be reversed, but the record does not support the appellant’s argument that we should enter judgment here. There may be an issue of proximate causa tion to be submitted to the j ury upon a retrial, because it does not appear to be an undisputed fact that the collapse was caused by an accumulation of sleet rather than of snow.
Reversed and remanded.
Purtle, J., dissents. | [
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Per Curiam.
Appellant, Melvin Glenn Haney, by his attorney, has again filed for a rule on the clerk. In a Per Curiam opinion issued June 28, 1982, we denied a similar motion.
His attorney, Harold W. Madden, has attached an affidavit admitting that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam dated February 5, 1969, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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By the Court,
Lacy, J.
The question here to be decided turns upon the proper construction to be put upon the covenants or promises of the respective parties to the contract in this suit. It is evident, if the covenants are dependent, that the declaration is bad; and if independent, that it is good, and the breaches well assigned. It is true, as contended, that there is a strong inclination of the courts, in modern cases, to favor the doctrine of dependent covenants, such construction being obviously most just, and tending to prevent a multiplicity of suits. Still, where the parties by the nature and terms of their contract, clearly show that each intended to look to his own part of the agreement, and to rely upon the remedy it afforded, in such cases the performance of the covenant of the one has no reference' to that of the other; and hence the courts are not at liberty, upon such mutual agreements, to make one depend upon the other, but they are bound to construe them separately, and independently of each other. The rules upon this subject are accurately stated by Sergeant Williams, in his learned note to the case of Pordage vs. Cole, 1 Saund. R. 319, in which the English authorities are collated and reviewed. “ If,” says he, “ a day be appointed for payment in full or in part, or for doing any other act, and the day is to happen before thing which is the consideration of the money, or the act which is to be performed, an action will lie for the money, or for not doing such other act before performance; for in such case, it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent. And so it is where no time is fixed for the performance of that which is the consideration of the money or other act. Dyer, 76, a in margin. I Saek. 177, Thorp vs. Thorp. 1 Lord Raymond, 665. 1 Lutw. 250. And this was the ground upon which the judgment in that case rests; for the money was to be paid in that case upon a given day, which might happen before the lands were or could be conveyed. Another rule laid down is, that where a covenant goes to only a part of the consideration, and a breach of such covenant may be had in damages, it is an independent undertaking, and an action may be maintained for a breach of the covenant, without averring performance. And in support of this rule, it is decided in the Court of King’s Bench, (East. 17 Geo. 3, Boone vs. Eyre,) that where a party conveyed an equity of redemption to a plantation, together with a stock of negroes upon it, in consideration of a given sum and an annuity for life, and covenanted that he had good title, the breach assigned was, the non-payment of the annuity, and the plea denied that he was possessed of a valid title to the slaves, and so had no authority to convey. The plea was adjudged bad, and the Court added, if the plea were allowed, then that a failure of any part of the consideration would defeat the action. Campbell vs. Jones, 6 T. R. 570. The reason given for the decision is, that where a person has received a part of the consideration for which he entered into the agreement, it would be unjust that, because he had not the whole, he should be permitted to enjoy the part he had without paying for it. The same doctrine, is fully recognized in all the American authorities upon the point. And the reason that mutual promises will bear an action without an allegation of performance, is, that the law binds every man to perform his contract according to its true intent and effect. He makes his bargain, and relies upon the other’s covenant for performance. In such case, it needs no averment of performance on either side to maintain the action. But if it appear that either party was to have the thing done before performance on the other part, then performance, or a readiness to perform, must be averred. In Jones vs. Barkley, Douglass, Lord Mansfield remarks that the dependence or independence of covenants was to be collected from the evident sense and meaning of the parties, however transposed they might be in the deed. Their precedency must depend upon the order of time in which the intent of the transaction required their performance. Cunningham vs. Morrell, 10 J. R. 204. Robb vs. Montgomery, 20 J. R. 15.
The same doctrine is established in Gardinier vs. Cusan, 15 Mass. R. 501. The application of these principles to the case now under consideration, proves conclusively that the mutual covenants of the respective parties are independent undertakings, and therefore there was no necessity to aver, in the declaration, performance or readiness to perform.
Sayre sold and agreed to convey to Craig, by deed with general warranty, a tract of land described in the covenant; and in consideration of this sale, Craig bound himself to pay the purchase money in two different instalments, the first to become due in March 1840, and the second in February, 1841; and to secure these payments, he was toj deliver to Sayre bills of exchange, to be drawn by Erwin and accepted by himself, payable in New-Orleans. Possession was to be delivered to Craig upon the first of January, 1840; and the contract was entered into on the 21st of September, 1839.- From these facts, it is perfectly evident that Sayre had a right to demand the bills upon the execution of the contract, and that Craig had an equal simultaneous right to demand a conveyance. The right of neither depended upon the performance of a condition precedent. Craig agreed to accept and take Sayre’s covenant title; and Sayre was bound to convey, and look to Craig’s personal obligation alone for the purchase money, and to accept the bills of exchange, if tendered in conformity with the agreement to secure the payment of the purchase money. Their covenants were independent of each other, and each relied upon his own part of the agreement for their performance, and the respective obligations were due presently, and attached immediately upon the execution of the deed. By the terms of the contract, the money was to be paid upon a day certain, which was to happen or might happen before making the conveyance, and part of the consideration was executed by delivering possession; and both these facts bring the agreement within the operation of the rules above stated. The same principle holds good where a day certain is fixed for the payment, and no day certain fixed for the performance, which is exactly the case in the present instance. And so the point was determined in Cunningham vs. Morrell, 10 J. R. 204, and in Thorpe vs. Thorpe, 12 Modern, 455.
If these positions be true, then it follows that the declaration is good, and the breach well laid. It consists in the averment of the non-payment of the purchase money on the first instalment, when it fell due. This the plea neither admits nor denies, but seeks to avoid and bar, by alleging the payment of about a thousand dollars on the first in-stalment, before it was due, and the tender of bills of exchange for the residue of the purchase money due on the first instalment, and all the last, which it states was refused. This is tendering the plaintiff an immaterial matter, which he was not bound to take issue upon. The foundation of the action is the non-payment of the purchase money, and the plea is no answer to that charge. The bills of exchange to be drawn by Erwin and accepted by Craig, were intended, as expressed in the covenant, as collateral security to secure the payment of the purchase money. Sayre had a right to the bills, and Craig was bound to present them. But the cause of action arises out of the non-payment of the first instalment, and the plea, by not traversing this fact, must be adjudged insufficient: consequently, the Court erred in overruling the demurrer to it.
Judgment reversed. | [
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By the Court,
Dickinson, J.
There are several bills of exception taken during the progress of the trial, which we deem it unnecessary to discuss, as the main points in the cause arise upon the instructions. The record is encumbered with much useless matter; there are but few principles of law applicable to the case, and those are simple, and every way familiar.
The plaintiff sought to charge the defendant, upon the ground that he had received the notes and other property sued for, during the life of the intestate, who was proved to be his father; and that he had converted the same to his own use and benefit. Will the action lie? Upon this point, there can be no doubt. The executor or administrator might bring trover for the wrongful conversion of the property of his testator or decedent. The defendant, in the present instance, endeavors to discharge himself, by producing an acknowledgment of satisfaction, in the receipt of his father for the value of the property. The plaintiff attempts to avoid this conclusion, 1st, upon the ground of insanity; and, 2d, upon that of fraud. The Judge who tried the cause has expressly decided, that the administrators would have a right to recover, although the proof established the fact that the receipt was given in fraud of the rights of creditors. In this there is certainly manifest error; and the instruction being every way material and important, for the direction and government of the verdict, of course we are authorized to presume, that it must have had considerable weight and influence in determining the cause. |lt is perfectly clear, that, if the proof showed that if it was executed in fraud of the rights of creditors, then neither the party executing it, nor his administrators, nor any claiming under him, could take advantage of that fraud. To allow them to do so, would be to encourage, fraud instead of suppressing it, and hold out the strongest temptation for its perpetration. The maxim is, that no one shall take advantage of his own wrong: much less, of his own fraud. While the fraud violates and destroys the contract, as respects the rights of third persons, or creditors, still the argument is rightly held to be binding between the parties themselves. And, unless this was the rule, the rights of creditors, or third persons, could not be protected or secured against fraudulent devices. The universality of the rule is only equalled by its importance; and, therefore, when the Court below instructed the jury, that the fraud of the deceased could be made to benefit his estate, he certainly contra vened a principle of natural and municipal justice, which is recognized bj all the authorities, and enforced by courts, with the most rigid exaction.
It is certainly true, that if the deceased, at the time of executing the receipt, was disqualified, from insanity or imbecility of mind, of course neither he in his lifetime, nor those who succeeded him, are bound by any such pretended contract. Insanity or imbecility of mind destroys the will of the contract, and takes from it its binding efficacy and force. There can be no volition where there is neither judgment nor consent; and him who expects to take advantage of this weakness or aberration of mind, the law wisely restrains from doing so, and holds the contract a mere nullity, or no contract at all. No two things can be more widely separate than fraud and insanity. They cannot exist together; the one deserves the punishment of the law; the other, its sympathy and protection; and so they have ever' been treated. If the receipt was given, and the party executing it knew not what he did, the law holds it a nullity ab initio. On the other hand, if it was executed in fraud, it is binding between the parties themselves and all who claim under them; and it is absolutely void and of no effect, as to creditors. This principle the defendant has been denied the advantage of.
Judgment reversed, and new trial awarded. | [
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By the Court,
Lacy, J.
The. plaintiffs in error have put in the plea of mil tiel corporation; and the inquiry is, does this plea constitute a valid defence to the action? Admitting the plea to be good in : form, and we take it to be so, it then properly raises the question J whether the Bank of the State be a corporation or not. It is certainly true, that there can be no act of incorporation unless there be corpo-rators. There can be no body without members. The distinguish-\ ing feature of a corporation is that by which a perpetual succession of j a corporate body may be kept up, so that it may act with the will of sJ single person. It is contended that the act, in this case, is a mere abstraction and nonentity, as it simply declares a Bank shall be established, designated byname. It is true that'there are no express words incorporating any particular persons, still, the fund is placed under the management and control of a given number of directory, who are required to be elected by the Legislature, and the usual powers of banking conferred upon them. The act itself is exceedingly vague and ambiguous; it is, nevertheless, capable of being defined and understood; and, taking all its parts together, and considering it as an entire whole, we think no doubt can be entertained, that it was the intention of the Legislature to incorporate the.directory, and that all the affairs of the corporation were put under their government. They are certainly not declared, in express words, to be incorporated, but still, the powers and authorify conferred upon them, in regard to banking, cannot exist, unless they are so incorporated.
No particular form of words or mode of expression is necessary to create a corporation. All the authorities show that a corporation may be established by necessary implication as well as by express grant. ] Here that implication unquestionably arises, or you must abrogate all 1 the powers of the directory which the charter gives them. The whole | act must be construed together, and every part made to stand, if possible. This can be readily done, if the directory are considered as incorporated. Although their powers are mentioned subsequent to the name of the Bank and the amount of capital,' still, they attached at one and the same time with this declaration, and must be made to take precedence of it in order to give life and being to the act of incorporation.
■ The demurrer to the plea was, therefore, rightly sustained.
Judgment affirmed. | [
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By the •Court,
Dickinson, J.
In regard to the plea of usury, it constitutes no defence, in this instance, as the act of 3d March, 1838, authorizes the defendant in error to charge the same rate of interest as the Bank of the State; and the interest, in this case, was calculated ■according to the provisions of that act. The judgment upon the demurrer was, therefore, right. The Bank, being a public corporation, was not required to be proved; as the court was bound judicially to take notice of it. It was not necessary to prove demand at the place of payment, as has been ruled by the court, in the case of Summer vs. Ford.
Judgment affirmed. | [
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Held, as in Clary Webb vs. Morehouse, 3 Ark. 261, tha.t where a note is sued on which bears interest at a rate greater than six per cent, per annum, non-payment oi the interest must he alleged in the breach. | [
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By the Court,
Dickinson, J.
The declaration in this suit is signed by Bocage, as the attorney for the plaintiff; but, in the subsequent proceedings of the cause, it appears that James Yell is also an attorney for the same party. The paper, purporting to secure the costs which may accrue, is not sealed, and consequently cannot be considered such an obligation as is required by statute. The only question is as to the residence of the plaintiff, and whether the Court below is sustained in its judgment by the testimony adduced. James Yell, one of the plaintiff’s attorneys, disclaims all knowledge of his place of residence, while Henry Allen, who knew him, declared that, seventeen years ago, the plaintiff was then a citizen of Indiana, and he had never heard of his removal from that State. This is all the evidence having any bearing upon the case.
It is sometimes a matter of some difficulty to ascertain and decide in what place a person has his residence; and, in this instance, the question is not free from difficulty. One of the witnesses, however, has fixed and determined the residence of the party, at a period, it is true, long anterior to the institution of this suit, but sufficient to' raise a presumption, which, however slight, when once fixed, must remain until it is overthrown by other testimony. And, in this conclusion, we are sustained by Judge Story, in his Commentaries on the Conflict of Laws, p. 39, and by other authorities. The question'is one of fact, and, from the evidence set out in the bill of exceptions, we should not feel warranted in declaring the Court had erred.
Judgment affirmed. | [
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By the Court,
Ruígo, C. .1.
The causes of demurrer, specially assigned, are: 1st, That the writ does not set out the .Christian names of the plaintiffs; and, 2d, There is a variance between the writ and declaration, in the names .of the plaintiffs, and the capacity in which they sue.
These are unquestionably not objections to the merits, or in bar of the action; and, therefore, according to the principles acted upon by this Court, in the case of Stone vs. Bennett et al., just decided, could not be taken advantage of by general demurrer.
The breach assigned is not commensurate with the contract as stated in the declaration, and is therefore defective; but as no objection to the breach is specially assigned in the demurrer, we are bound to disregard or amend it. And inasmuch as the declaration shows a legal right in the appellants to demand and recover of the appellees the debt, without the conventional interest mentioned in the contract, the demurrer, according to the principles adjudged by this Court, in the case of Davies vs. Gibson, 2 Ark. Rep. 115, ought to have beep overruled. We are therefore of the opinion that the Circuit Cour,t did err in sustaining the demurrer, and thereupon abating the writ.
Judgment reversed. | [
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By the Court,
Dickinson, J.
The petition sets forth the writing obligatory in the manner prescribed by the statute, and the judgment for interest conforms to the contract.
Judgment affirmed. | [
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By the Court,
Dickinson, J.
As to the plea in abatement, it is improper for this Court to make any remark upon it, as it was stricken from the files, and no exception taken, and consequently it forms no part of the record. We have already, in a previous case decided at this term, expressed our disapprobation of this striking out pleas, unless the Court perceive they are wholly frivolous. The case now stands simply upon the judgment rendered below. That is given upon a note calling for no particular rate ,of interest upon its face; yet the interest is calculated at ten per cent, per annum, by way of damages, and the same rate of interest allowed upon both debt and damages, until paid. We know of no law that authorizes a party to recover a greater rate of interest than six per cent., unless so expressed upon the face of the contract; and then it cannot exceed ten per cent. The Court, then, in giving judgment for interest on the judgment at the rate of ten per centum per annum, has clearly erred.' It may be proper here to remark, that there is no public corporation in this State, of the name and style adopted by the plaintiffs; but, as there is no proper plea now remaining upon the record, calling in question her right to sue, we are not at liberty to express any opinion, upon that point.
Judgment reversed. | [
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Eakin, J.
This transcript shows, that Collier & Davis, sued R. J. Turner in a common law action, and recovered against him, a judgment for the sum of $499.65 principal, and $14.58 damages.
Upon the institution of the suit, a writ of attachment had been issued against the defendant’s property, and levied upon twenty-one bales of cotton supposed to belong to him. This cotton was claimed by McAllister & Wheeless, who gave bond, in the terms required by Statute, in the sum of $1,000, that they would interplead for the cotton at the next term, and prosecute their claim, and that if the plaintiffs should recover judgment against defendant, they would deliver said property to the sheriff, when demanded, after execution should come to his hands to be levied thereon. This bond was signed by R. J. Turner, the defendant in the suit, and by G-. Meyer, and the firm of McAllister & Wheeless, and returned with the writ.
Why the sum of $1,000 was fixed as the penalty of the bond does not appear by the sheriff’s return or otherwise. It seems to have been intended to cover double the amount of the debt, which (lacking only a few cents) was $500.
In court the defendant pleaded to the action unsuccessfully, and the interpleaders set up a claim to the property attached, which was tried by a jury. They found, upon the last named issue, that the cotton in controversy did not belong to the interpleaders.
Judgment, on both issues, was rendered on the same day. That in the original suit, upon trial by the court, was in effect to sustain the attachment, and in plaintiff’s favor againstR. J. Turner for the sum of $499.65 debt, and $14.48 damages. The judgment proceeds to recite the levy of the attachment upon the twenty-one bales of cotton, the bonding of the same by McAllister & Wheeless, with Turner and Meyer as securities, and the verdict of the jury against the interpleaders. Whereupon it was “ ordered, considered and adjudged” that the plaintiffs, Davis & Collier, “have execution against the twenty-one bales of cotton, attached in this suit; and if the same is not delivered to the sheriff of Jefferson county, by said interpleaders on demand, that execution issue on return of the facts on fieri facias by the sheriff, against G. Meyer and R. J. Turner, securities on the interpleaders’ bond, for the sum of one thousand dollars, or so much thereof as will be sufficient to satisfy the said debt, damages and costs as aforesaid.”
A motion for a new trial filed by the defendant was overruled and he prayed an appeal. There is no bill of excep tions, although the transcript is encumbered with what the clerk supposed to be one. It is not signed by the judge and cannot be noticed. Nor is there any evidence of an appeal by J l l j McAllister & Wheeless, although the cause seems to be prosecuted here in their name and on their behalf.
It is apparent that R. J. Turner, the appellant, is not only the defendant in the original suit, but one of the sureties in the bond given by the interpleaders to obtain possession of the property. The appeal presents to us only this question : Was the judgment against him, in either character, ¡such as the court could properly render under any proof whatever ?
There can be no question as to the debt, and damages. Quoad hoc, in the absence of a bill of exceptions, no error •can be presumed. It is only left to consider whether the •Statute authorized such a judgment, as was rendered against 'Turner as security on the retaining bond.
It provides (See Gantt’s Digest, Sections 4=69 to 473) that when property attached is claimed under oath by a third person, it may be delivered to him by the sheriff, if he will execute to the plaintiff a bond in a sum double the value of the property attached, “which value shall be ascertained by the oaths of two citizens of the county where the writ is levied, to be chosen by the sheriff,” conditioned amongst other things, that if the plaintiff should recover judgment, and the property be found to belong to defendant, it should be ■delivered to the sheriff “after execution upon such judgment comes to his hands to be levied thereon.” If such delivery be not made, then it is provided that the “ bond shall have the force and effect of a judgment for the appraised value of such property and the costs of the interplea, if such appraised value be less than the amount of the judgment rendered in the original case; and if more, for the amount •of said judgment and costs, on which judgment, execution against all the obligors may issue.”
It is made the duty of the sheriff to return the bond the writ. The person who thus bonds and retains, or obtains A 7 the property, is not bound to deliver it up to the sheriff until •a fieri facias be issued on the original judgment; only •upon such failure, it is made the duty of the sheriff to state ■such fact in the return made by him to the writ of fieri facias, and it is only on the showing made by such return, of the breach of the condition, that the bond becomes forfeited, and not, until such return and showing, is there any power •of the clerk to issue any execution whatever against the obligors, even if the amount were ascertained by appraisement. Certainly there is no power, in any case, to render judgment against the sureties in the bond for its full amount in the statutory proceeding.
It is very plain that the appraisement of the property under •the directions of the sheriff, is an indispensable foundation, ■and basis of the whole statutory proceeding. That should be shown by his return, and thus made part of the The courts cannot safely presume the appraised value of the property to have been actually made ; less can they presume •that it was actually half the amount of the bond. The parties might have been willing to give, and the sheriff would certainly be authorized to take a bond for ten times the value of the property; still without the specific guide afforded by the valuation the courts cannot proceed to-direct the clerks to enforce the statutory regulations.
The judgment in the original cause against Turner, so far as it fixes his debt, and directs execution therefor, is correct, but upon appeal we must hold that so much of it as is against the appellants, Turner and Meyers jointly, as sureties upon the retaining bond of McAllister & Wheeless, is void and of no effect and must be reversed.
Execution may well enough issue against Turner for the amount found in the original suit, but to fix the liability of the parties to the bond, if there be any, a common law action would be necessary.
Reverse so much of the judgment as is against Turner and Meyers, as sureties of McAllister & Wheeless as inter-pleaders, at the cost of appellees.
Affirm otherwise. | [
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opinion.
English, C. J.
This action was commenced 26th November, 1879, and was brought in the name of the State, for the use of Izard County, as provided by the Act of 27th February, 1879. (Acts of 1879, p. 13.)
The court below no doubt sustained the first cause of demurrer, (want of jurisdiction,) to the fifth paragraph of the complaint, because though the order of allowance, set forth in that paragraph, had been rescinded by the County-Court, at the term at which it was made, and when under- its control, yet the sum claimed in the paragraph, being but $22, was not within the jurisdiction of the Circuit 'Court.
And the court doubtless sustained the second cause of •demurrer to each and all of the other eight paragraphs of the complaint, because it was unwilling to treat the orders <of allowance therein set forth, when questioned collaterally, ■as not having the solemnity and conclusiveness of judgments.
This court has treated orders of the County Courts, allowing claims against counties, -as well as orders of the Probate Courts, allowing claims against estates of deceased persons, as in the nature of judgments. Rieff et al. v. Conner et al., 10 Ark., 241; Desha Co. v. Newman, 33 Ib., 783; Carnall v. Crawford County, 11 Ib., 604; Borden v. State, Ib., 519.
An order of allowance, made by the County Court, may . ° J J ke reviewed or opened in several modes :
First. By appeal to the Circuit Court.
Second. It may be quashed on Certiorari by the Circuit Court, where it appears from the face of the record that the claim allowed was not, by law, a charge against the county, and the court had no’ authority or discretion to allow it upon any evidence that might have been introduced. Jefferson County v. Hudson, Sheriff, 22 Ark., 595.
Third. The statute empowers the County Courts, as often as once in three years, to call in all outstanding warrants, to examine and cause them to be renewed, if legally Issued, and, if not, to reject them. Thus the Legislature ■has empowered County Courts to review allowances made ■at previous terms, and, if made without authority of law, to 'reject warrants issued upon them, and also to reject war rants otherwise illegally or fraudulently issued, as held in. Desha County v. Newman, Sup.
Fourth. An order of allowance may be opened in Chancery, as any other judgment, for fraud, accident or mistake, on a proper case made.
In Shirk v. Pulaski County, 4 Dillon, 209; the suit was upon warrants issued upon allowances made for live and ten times the value of the claims, in violation of law, and in fraud of the public ; and the court upon equitable principles* cut down the- warrants so as to make them represent the-value of the claims on which they were issued.
In this case it is alleged in this complaint that the items, in the several accounts objected to were allowed by the-County Court under a misapprehension of the law governing the fees of officers, at the time the allowances were made, but no fraud is alleged.
To treat the orders of allowance as null and void in. this-suit, to strip them of all solemnity and conclusiveness as judgments, questioned as they are, collaterally, would be-going a length which this court has never sanctioned ;• and there is no necessity for it when other remedies, as above-shown, are provided. But there is a further trouble in this case. It is in the nature of the common law action for money had and received by appellee, at different times, for •the use of Izard County. The complaint, taken as a whole, alleges in substance, that at each of the nine terms- of the-County Court, an account was allowed in favor of appellee for a sum named, and a warrant ordered and issued by the clerk upon the treasurer for the amount, and that in each of the accounts there was one or more items for fees not allowed by law ; but it is not alleged that any of these warrants were paid by the treasurer, or that appellee- obtained any money upon them.
Eor anything that appeared in the complaint as amended* these warrants may all have been in the hands of appellee when the suit was brought, part of each warrant, according to the theory of complaint, being for fees not allowed by .law.
See Abbott’s Trial Evidence, pp. 277, 275, etc. | [
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STATEMENT.
Eakin, J.
This is a bill by appellant to enjoin the execution of a judgment in replevin, which had been obtained against him by Payne before a Justice of the Peace upon ■default; a levy had been made upon the property of complainant, and the bill seeks to enjoin the sale, and other relief.
The cause was heard by the Chancellor upon the bill, the .proceedings before the Justice, and upon affidavits. No ■answer was filed, and it comes up on a motion to dissolve •the injunction, which had been made at the beginning of the suit. Upon the hearing the Chancellor held that the •complainant had not shown sufficient diligence in prosecuting an appeal, and that no accident nor fraud had been •shown to justify the interposition of equitable relief. The bill was dismissed, and complainant appeals.
OPINION.
This case is the same which was brought to our notice by the application of Payne for a certiorari to bring up and ■quash a subsequent order of the Chancellor at the same term, modifying the decree so as to continue the interlocutory injunction whilst the appeal might be pending here. -(See opinion in case of Payne v. McCabe, ante 318.)
The modifying order does not appear in this transcript, as it was made after the appeal, and does not come properly before us on the present submission of the case on appeal, and no point is now made on it in argument. This ■supersedes the necessity of further remarks on the practice, than were made in the case cited.
The first point now made by the appellant is, that he mever properly summoned, nor did he enter any appear.anee in the suit before the justice, and that, therefore, judgment by default is void, and tbe levy not due process, of law.
The summons was issued on the thirteenth day of March, 1880, directed to the coroner of the county, and made returnable on the twenty-fifth, upon which day judgment by default was rendered. Service was made by the coroner on the fifteenth, and certified by his return.
By the civil code (see Gantt’s Digest, sec. 4835) any kind of process wherein the sheriff is a party, or is interested, shall be directed to the coroner; or, if he is interested, to some constable. In this case the defendant (complainant here) was the sheriff of the county. This was a general provision, applicable to all courts.
It had been provided by the Eevised Statutes, (See Gantt’s Digest, Sec. 877,) that the coroner should execute and return all processes, of whatever nature, where the sheriff is a party, etc. This also was general.
By a later Act, of April 29, 1873, (See Gantt’s Digest, Sec. 3725,) regulating proceedings before Justices of the Peace, it was provided that summons should be directed to the constable, but might be served, by any officer or person, authorized by law to serve process. The same Act, (See. 3727 of Gantt’s Digest,) provided that all proceedings prescribed for Circuit Courts, and not therein changed, should be pursued in Justices’ Courts, so far as the same should be applicable.
It maybe remarked that the Civil Code provided by Section 59, (See Gantt’s Digest, Sec. 4504,) that the summons shall be directed to the sheriff, and without any saving. It was never supposed, however, that this section was in conflict with the special provision in another part of the Code, (above cited as Sec. 4835 of Gantt’s Digest,) that where the sheriff was a party, or interested, it should be directed to the coroner.
Upon a review of all the legislation, we are of opinion that the intention of the Act of 1873, regulating proceedings before justices, was to prescribe, for uniformity, that' the summons should be directed to a constable, and perhaps, also, to relieve county officers from the obligation to consume their time in the service of the Courts of the Justices, but not to deprive them of the power to execute the process. In other respects the direction seems matter of foim; for the summons need not go into the hands of a -constable at all; but although directed to one, may be taken and executed by any officer authorized to serve process.
The rigidity of the older decisions, regarding writs and process, has been much relaxed by more recent decisions of this court, as they may be found cited in Rose’s Digest Title “ Writs of Process,” Sections 36 to 41. The case of Rudd v. Thompson, 22 Ark., 363, in which the opinion was delivered by the present Chief Justice, recognizes this change. In that case, however, there was nothing to show that the sheriff was an “interested party,” and the writ, being directed to the sheriff, it was held that it could not be executed by the coroner. The case had not arisen, giving the coroner power to serve the process, however directed.
Conceding that the direction of the writ in this case was irregular in form, it might, on motion have been amended, or quashed, but it was not void. It was directed to an officer authorized to serve it, and served and returned by him. It- seems that no objection was interposed to the summons, but the defendant came in and moved to set aside the judgment by default, for the purpose of making a defense. This being refused, he failed in time to prosecute his-appeal. He was not afterwards, on account of a ■defect in the summons alone, entitled to equitable relief.
Another ground of the relief sought, is that complainant was prevented by accident from perfecting his appeal. No-is alleged.
The circumstances appear, in substance, as follows r After the refusal of the justice to set aside the judgment by default, complainant, through his attorney, caused to be prepared the proper affidavit,bond and notice for an appeal,and sent them within a day or two before the expiration of the time allowed to be filed with the justice. The agent bearing them, did not find the justice in, and left some papers-in an envelope with a deputy constable who usually attended the justice’s court, to be delivered to the justice when he should come in. Returning he met the justice in about two hundred yards of the office, informed him of what, he had done, and went his way. The agent swears in his affidavit, that the envelope contained the affidavit for appeal, the bond and the notice. The deputy constable swears that he delivered the .envelope, with its contents, to the justice on the same day, and the justice swears that when he opened it, the affidavit for appeal was not there, and the appeal was-consequently not taken. The deputy does not appear to-have been the clerk of the justice, but usually attended his court, to do the proper business of a constable.
The accident, if any, consists in what we may well suppose to have been a mistake on the part o.f the agent, in thinking, as he doubtless did, that the affidavit was in the envelope,. Hedoesnot say certainly that he left the envelope with the constable on the same day he received it, to be taken and filed, but says it may have been on that day or the next day. There is not the same probability of mistake on the part of the constable, as to having soon afterwards handed the envelope to the justice, or on the part of the justice in failing to find the affidavit. There is no reason to doubt the veracity of any of the affiants.
With all this, however the mistake may have occurred, the plaintiff in the judgment had nothing to do. He is not chargeable with any misconduct, or action by which the defendant might have been thrown off his guard. We think it an unsafe precedent to cause him to lose the benefit of his judgment, from a mistake of this kind. The defendant in the judgment by himself, or his agent or attorney, should have seen to it, more closely, that the proper papers were actually filed; which might easily have been done by a walk of two hundred yards. The plaintiff in the judgment is not responsible for any press of business, which may have rendered it inconvenient. We concur with the chancellor in the opinion that the complainant did not show sufficient diligence to entitle him to invoke the aid of chancery.
As the summons was not absolutely void, and there was actual service in due time, it was further essential to the plaintiff’s case to show, not only mistake or accident, without laches, but also to show that he had a valid defense to the action. This he does allege in general terms, and offers to submit to any decree of the court upon the merits, but he does not set forth the defense in any terms sufficient to enable the court to judge of it, nor did he ask leave to amend his bill to that end. That was not important, however, as it would not have been available, without a show of diligence as to the appeal, in which he failed.
We find no error in the decree. Let it be affirmed. The injunction will of course cease with the affirmance.' | [
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Harrison, J.
The evidence leaves no doubt upon the .mind that the appellee, after he obtained his judgment •■against the appellant for the possession of the house and ° ■lot, rented it to her again and received rent from her for it, •not only during the remainder of the time for which it been originally rented, but for several months thereafter, By the new agreement she again admitted his title, held the house and lot as his tenant, and he obtained the possession, which he had recovered in his action, and the judgment therefor was satisfied and extinguished.
It can make no difference that the appellee supposed, as •he very probably did, that the judgment was superseded, and he could not sue out a writ of possession until the appeal was determined, or whether it was superseded or not; for the appellant was at liberty, notwithstanding the appeal, and a supersedeas, if there had been one, at any time to surl’ender, as she virtually did do, the possession to him.
To obtain possession, upon her refusal to surrender it, after the expiration of the new lease, the appellee’s remedy ■was by a new action.
According to the weight of evidence, .as we think, it was .a condition of the contract for the new letting, that the damages recovered and costs should be set off against her claim of damages to her goods by the leaking of the house ; and in agreeing to their settlement in this way, he was influenced by his solicitude that the property should not, by her leaving it, get into the possession of Eeynolds & Con ger, and which, by the new letting, he was endeavoring to prevent, and these also, were thereby satisfied and discharged.
The court .below erred in refusing to decree a perpetual injunction against the whole judgment, and in dismissing" the appellant’s complaint, and its decree is reversed, and such a decree as should have been rendered there will bo entered here. | [
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Harrison, J.
A bill of exceptions could only be sighed 1)3' the Special Judge before whom the case was tried and •the exceptions taken.
Judge Pindall, the regular Judge, could not have had that direct and certain knowledge of the proceedings and rulings of the court as might enable him to make the matters excepted to a part of the record by a bill of exceptions..
The paper purporting to be a bill of exceptions, and signed by him as such, therefore, constitutes no part of the record, and is a nullity.
A count for grand larceny may be joined, with one for burglary, in the same indictment. Gantt’s Digest, sec. 1351; Toliver v. The State, 35 Ark., 395. And there may be a general verdict of guilty, on the whole indictmen. Howard v. The State, 34 Ark, 433; 1 Bish. Cr. Proceed., sec. 1015a; 3 Whar. Crm. Law, sec. 3047.
But “where the counts are for distinct offenses,” says Mr. Bishop, “though a general verdict of guilty will operate as a conviction of all, still it has been held,, and it seems in reason just, that the defendant is entitled, on request, to have separate findings returned upon them, oi\ at least, to have the jury in some way pass upon each by itself.” 1 Bish. Crm. Proceed., sec. 1015a.
As the least- punishment for burglary is three years imprisonment in the penitentiary, and, for grand larceny, one year, it is evident the defendant was not found guilty of both, but only of one or the other. That the verdict did not show which, was not an error for which the judgment might have been arrested, or should be reversed. The defendant could have required it to be certain and distinct.. 1 Bish. Crm. Proceed., sec. 1013.
An indictment need not be signed by the prosecuting attorney. It is sufficient if found by the grand jury and indorsed by their foreman. Anderson v. The State, 5 Ark., 444; 1 Chit. Crim. Law, 324; 1 Arch. Crim. Prac., 97; 1 Bish. Crim. Proceed., sec. 702.
Finding no error, the judgment is affirmed. | [
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Eakin, J.
After this cause was remanded, under the opinion of this court, in 33 Ark., 267, administrations, original and de bonis non, having been, since the appeal, granted on the estate of Abner L. Gaines — the appellants-appeared in the Circuit Court, and were allowed to file an amended answer, showing:
That, on the nineteenth of July, 1877, and during the pendency of the appeal here, the original administrator of Gaines redeemed from the State of Arkansas a portion- of the lands included in the deed of trust, or second mortgage ;■ to-wit, the east half, and northwest quarter of section thirty-four, in township fifteen south, range one west.
They allege that the redemption was made under an Act of the General Assembly, approved December 15, 1875, “ To-regulate the sale of lands belonging to the State, in certain cases;” and that he received from the Commissioner of State Lands a certificate of said redemption, upon which the appellants, as administrators de bonis non-, afterwards— on the nineteenth of August, 1879 — obtained a deed from the Governor, which they file as part of their answer.
They say, the purchase money of said lands has been fully paid, and claim that the title, so acquired, vests in the estate a good and valid title to said land — clear of all incumbrances whatever. They pray that those lands, also, maybe decreed to them, as well as those embraced in the first, lien against Smith and Adams, and for general relief.
The deed exhibited has for its caption, “Redemption-Deed for Real Estate Bank Lands,” and recites that it was-executed upon the certificate of the State Land Commissioner, under said Act; that the purchase money had been paid, on account of lands mortgaged to the Real Estate Bank. It included many tracts besides the one in question, being for nearly 3,0C0 acres; and states the purchase money of the whole together, to be $1,570.40.
To this answer a general demurrer was sustained, and, declining to amend, the respondents appealed. The court then proceeded to decree a foreclosure of the deed of trust as to all the lands in the original bill not embraced in the first lien.
The decree, however, recites that, it appears, the defendants, as administrators, had expended funds of the estate in redeeming said lands from the State of Arkansas, which sum is a charge upon the said lands, and orders that the same be repaid, with six per cent, interest from the time of its expenditure.
A like recital and order is made with regard to taxes upon the lauds, paid by defendants.
The decree further recites that the lands had been in possession of the said Abner L. in his lifetime, ,and of his legal representatives since.
The Master was directed to determine the amounts paid, for such redemption, and upon such taxes, the time, kind of funds, etc., their actual value, etc., and, further, to ascertain the fair rental value of the said premises, whilst so in possession of said Abner L. and his legal representatives.
The Act of December 15, 1875, under which the purchase was claimed was passed wholly for the benefit of the owners of the equity of redemption, and one must have been such owner in order to be competent to avail himself of its leges. What is meant in this State by the equity of redemption in Real Estate Bank Lauds is well undesrtood by our courts and people. Indeed all matters connected with the organization, history and dissolution of the Real Estate Bank, - have been so much discussed, and made so much the ject of Legislation, and judicial controversy, as to come within the proper range of judicial cognizance. It is historical. The court knows that the State claims for her indemnity the benefit of mortgages executed to the Bank, and that all these mortgages are of date long anterior to any of the liens now under discussion. She has, for her convenience, her special fiscal court for their foreclosure, and all lands purchased in by her under such foreclosure, would, but for her own grace, vest in her, clear of all subsequent liens, and would pass, thus unincumbered,to her next grantees. There -were laws in existence providing for their resale, when the Act in question was passed out of tenderness to the owners of the equity of redemption, or those who would have been such but for the foreclosure. It gave those who were such at the time of the purchase by the State, ninety days after a certain period, to come in and l'edeem, and meanwhile the sales were suspended. It fixed also, liberal terms of redemption.
The particular lands in the answer were, as appears by the transcript of the cause remaining here, a part of those included in the second lienor trust deed, under which plaintiff claims, and also a part of those purchased by Gaines under the judgment in attachment. It is the law of this case (see former opinion) that the attachment lien was junior to that of the trust deed and the real ownership of the equity of redemption was in the trustees, for the purposes of the trust. There was also a secondary or subordinate ownership in the estate of Gaines which will sustain the purchase from the State, and entitle the administrators to be repaid advances for the exoneration of the property, but they stood in such relation to the superior owners of the equity, as would not allow them to purchase to their exclusion. Evidently Smith could not have done so, and the estate of Gaines, as to this special tract, cannot take greater rights than Smith had.
The answer was also, in effect and purpose, a cross complaint praying general relief. It sought on the facts stated, to have the title of the estate to the lands, vested and confirmed against all parties. In so far, it was bad. But it brought matter to the court, which entitled defendants to appropriate relief under the general prayer, which would be reimbursement out of the property, for such moneys as it had been necessary to use in the redemption of this particular tract, or the cash value of scrips and bonds, with six per cent, interest. The demurrer was general and should have been overruled. The answer might have been made more specific as to amount advanced for this tract.
The error in sustaining it was, however, merely formal. The decree recognizes the rights of defendants, as above indicated, to their full extent, and the directions to the Master contemplate their determination and enforcement. If this be done, there will be no inj ury, and in the view of the case we take, this appeal seems to have become unnecessary, after the decree. The proceedings of the court will not at this stage be interrupted'.
I observe an account ordered as to rents and profits. For what purpose his honor, the Chancellor, desires to be informed as to these, by the- Master, is not quite obvious, but they may, as to some of the lands, be necessary. The court will not anticipate his action, but it may not be amiss to say, -obiter, thatneither a mortgagorin possession, nor his assignee is reliable for rents and profits before foreclosure, or possession taken by the mortgagee or tr.ustee. If the corpus of the property be an insufficient security, the mortgagee ■may have a receiver. On the other hand, it is the duty of •the mortgagor or those claiming under him to keep down ■current taxes, without reimbursement. Those, however, who claim under the mortgagor and who are not the debtors, may be reimbursed out of the property for all sums advanced to exonerate it from liens superior to those of all parties whether arising from past due taxes or otherwise.
Affirm the decree and remand the cause for further proceedings in accordance witb this opinion, and the principles- and practicó in equity. | [
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Harrison, J.
The doctrine of the Common Law that the owner of domestic animals is bound to keep them within . his own enclosure, or on his own land, and that if he permits them to run at large and they go upon the land of another, though uninclosed, he becomes a trespasser, has never been recognized in this State. Such a rule is inapplicable to the condition and circumstances of our people. It would be, or would have been in the early settlement of the country, where there was so much land lying waste and uninclosed, most oppressive and unwise, and from the first settlement of the State to the present time, all kinds of stock have been allowed to go at large on uninclosed lands.
And it is shown, not only by the common understanding and custom of the people, but by the Statutes in relation to inclosures, estrays, and the marking and branding of stock, that the doctrine or rule was never considered as having any force or existence in Arkansas.
A very prudent person might not, perhaps, allow his stock to go at large in the immediate vicinity of a railroad, and ° ° J -one who does so may not be altogether free from negligence, yet he assumes only the risk of an accident which might not be avoided by ordinary care and watchfulness of the agents or employes of the railroad company. Kerwhacker, v. The Cleveland, Columbus and Cincinnati R. R. Co., 3 Ohio St., 172; Trow v. The Vermont Cen. R. R. Co., 24 Verm., 487; The Chicago & Alton R. R. Co. v. Gretzner, 46 Ill., 74; Raiford v. Miss. Cen. R. R. Co., 43 Miss., 233; Davies v. Mann, 10 Mee. & Wel., 545.
In Davis v. Mann, supra., the plaintiff fettered the forefeet of his ass and turned him into the public highway, and whilst it was grazing on the off-side of the road (which was about eight yards wide), and unable to get out of the way, the defendant’s wagon, with a team of three horses, coming down a slight descent, at what the witness termed a smartish pace, the driver being some little distance behind the horses, ran against the ass and killed it.
The judge (Erskine) who tried the case at the assizes, told the jury that though the act of the plaintiff in leaving the ass on the highway, so fettered as to prevent his getting •out of the way of carriages traveling along it, might be illegal, still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the wagon, the action was maintainable against the defendant; and he directed them, if they thought the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff. The jury having found a verdict for the plaintiff, on a motion for a new trial, Parke, B., said:
“The judge simply told the jury that the mere fact of negligence on the part of the plaintiff in leaving his donkey on the public highway was no answer to the action, unless the donkey’s being there was the immediate cause of the injury; and that if they were of opinion that it was caused by the fault of the defendant’s servant, in driving too fast, or, which is the same thing, at a smartish pace, the mere fact of putting the ass upon the road would not bar the-plaintiff of his action. All that is perfectly correct, for although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there; or the purposely running against a carriage going on the wrong side of the road.”
And Lord Abinger, C. B., said :
“The defendant has not denied that the ass was lawfully in the highway; and, therefore, we must assume it to have been lawfully there; but even were it otherwise, it would have made no difference, for, as the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.”
Although the mule was wrongfully on the defendant’s ** ^ track when lie received the injury of which he died, and was seen by the engineer, yet, if by the exercise of ordinary care and watchfulness, he might have seen him in time to have averted the danger, the defendant was liable for the injury that resulted from the accident. It was certainly the duty of the engineer to keep a constant and careful lookout and watch for stock which might be upon the track.
The defendant's first instruction, as it was asked by him, was, therefore, not correct, but as modified by the court, was properly given to the jury.
j;EI^f/fLI' ^1]®'0°¿ The construction by the court of the Act of February 3, 1875, for the recovery of damages for injuries by railroads, in the first instruction given on its own motion, was in accordance with the ruling in the case of L. R. & F. S. Ry. v. Payne, 33 Ark., 816.
We held in that case that the killing of the animal on the track being shown or admitted, the presumption is that it was done by the train,- and resulted from want of due care, but that the presumption may be repelled by proof; and we see no reason to doubt the correctness of the ruling then made.
There was, therefore, no error in that instruction, and the others complained of being in harmony with the view we have above expressed, they were all properly given.
The objection that the plaintiff; was permitted, after the J . A ' A evidence was closed, and the court had instructed the jury, to call a witness and prove that the mule was killed in Faulkner county, has not been insisted on hefebyappellant’s counsel. It was a matter within the sound discretion of the court, and there was no abuse of its discretion in allowing it to be done. Turner v. Tapscott, 30 Ark., 312; Lovells v. The State, 32 Ark., 585.
As to the sufficiency of the evidence to warrant the verdict, we think there can be no question ; of its weight and the credibility of the witnesses, it was the province of the jury to judge.
Finding no error, the judgment is affirmed. | [
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OPINION.
Harrison, J.
The first and third sections of the Act of Eebruary 11th, 1875, “prescribing and defining the duties ■of Justices of the Peace in certain cases,” under which the appellant was indicted, are as follows :
“ Section 1. That hereafter it shall be the duty of each -Justice of the Peace in this State to file an abstract of all the misdemeanors tried before him with the clerk of his county on or before the first day of the succeeding term of the Cir■cuit Court, giving the style of the case, the nature of the offense,'how he obtained jurisdiction of the case; whether the defendant was acquitted or convicted, and if convicted, the amount of the fine or punishment imposed.”
“Section 3. Any persons violating any of the provisions ■of this act, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum, not less than twenty-five nor more than fifty dollars, to be recovered by suit before a Justice of the Peace.” .
The appellant contends that the offense created by the-act is only cognizable before a Justice of the Peace, and the offender is to be proceeded against, not by a criminal prosecution, but by suit or civil action.
Such a construction of the act is wholly untenable. The words “tobe recovered by suit before a Justice of the Peace,"' in the third section, are inaptly used. Their evident meaning is not such as they literally import, but from the subject matter of the act and the context, is that the prosecution for-the offense shall be before a Justice of the Peace ;. and as thus interpreted, does not'restrict the jurisdiction of' the offense to Justices of the Peace.
The jurisdiction in criminal cases is fixed b^r the constitu- and in misdemeanors is concurrent in the Circuit Courts and Justices of the Peace, and it is not in the power of the legislature to deprive the Circuit Courts of such jurisdiction in any case. The State v. Devers, 34 Ark., 184.
No particular objection to the indictment has been shown, It contains, we think, a¡n averment of every fact necessary to constitute the offense, and with sufficient certainty and distinctness, and the demurrer to it was correctly overruled.
As the prosecution were necessarily in the name of the-State, and the names of the persons tried before him were stated in the abstract of cases which he filed, the style of' them was substantially given. There was also a substantial, if not a literal compliance, with the statute in every other particular, except as to how, or the manner in which,, he obtained jurisdiction in the case, as to which the abstract, was silent.
Except as provided by Section 2023, Gantt's Digest,. where the prosecution before a Justice of the Peace is upou the complaint of some one other than an officer, a bond for the payment of the costs must be given. Sections 2020, 2022. Such information, having relation to the costs in the. case, was therefore deemed important by the Legislature, for the protection of the interests of the county, and the requirement of the Statute in that regard was as material as in any other of the matters named.
The abstract filed by the appellant was therefore not such as the statute required, and though he may not have wilfully or intentionally failed to file such, and have honestly thought that the imperfect one filed by him was sufficient, and in compliance with the statute, that would not excuse him, and he was nevertheless guilty of the offense with which he was charged. His duty was a plain one, and he might, with reasonable diligence and attention, have known and done it.
We find no error in the rulings of the court during the trial, or in refusing to grant a new trial.
A Circuit Court has power to remove a county or township officer from office, upon conviction of non-feasance in office. Const. Art VII, Sec. 27; Act. of March 9, 1877; Allen v. The State, 32 Ark., 241.
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STATEMENT.
Eakin, J.
Martha Hays, a married woman, sued Tyner, a constable, in replevin, before a Justice, to recover a mare valued át $40, and damages, alleged in the complaint and affidavit at $5.
The defendant answered in writing:
1st. That the property was in the possession, when taken, of the plaintiff’s husband ; that the same was levied upon and taken as his property, by virtue of executions against him in defendant’s hands, issued by a Justice of the Peace, in favor of the State.
'2d. That he does not unlawfully and wrongfully withhold plaintiff’s property, as described, to her damage, in any sum.
Plaintiff recovered before the Justice, and again on appeal on a trial ele novo, in the Circuit Court, by the Judge sitting as a jury, judgment was rendered in her favor against defendant and his sureties in his appeal bond, for the mare or its value at $40, and for $45 damages, of which plaintiff offered to remit $6. Defendant appealed, after due motion for á new trial, and bill of exceptions.
The evidence on the part of the plaintiff showed that the property was given to her by her husband, at the time of her marriage in September, 1878, and had ever since been recognized as hers, and had been in her possession, until taken by defendant. She also introduced the defendant Tyner, who testified that he had levied on the property in pursuance of an execution, issued by a certain Justice of the Peace, on the first of October, 1879, to pay off two fines imposed on the husband by a former Justice. He disclaimed having made any other levy, or having any other authority to hold the property, than by said levy. She proved also, by the County Treasurer and the County Judge, that the fines imposed by the Justice had been paid before the levy.
Defendant, on his part, showed by. the testimony of the justice issuing the execution, and by the transcript, that upon the docket of his predecessor there were two judgments, or entries intended as such, for fines against the husband ; one of the twenty-eighth of August, 1878, for $3, with $2.10 as costs ; and another of the twenty-ninth August, 1878, for $1, with $9 costs, making in all $15. The present justice, upon these‘judgments, reciting them, issued one execution for $16, which was that under which the levy was made. There was proof also that all the costs of these suits had not been paid, but that there was still a balance due of three or four dollars.
Defendant further offered, but was not allowed, to prove by the sheriff of the county that before the commencement, of this suit said sheriff had in his hands an execution from the Circuit Court against the husband, issued for fine and costs adjudged against him in said court, in October, 1877, which had been levied on the property in question, and which property had been committed to the custody of defendant as the sheriff’s bailee, and that, therefore, he was entitled to retain possession. This evidence was excluded by the court, as inadmissible under the issues.
The court held the execution under which the levy had been made, to be void, and rendered judgment as above.
OPINION.
No question is made of the validity of the gift of the-mare from the husband to the wife, in September, 1878,. nor is it contended that it was not her separate property. It is only claimed that it was subject to the lien of judgments rendered before the gift, in favor of the State, against her husband, for misdemeanors. The execution was subsequent.
We are not called upon to decide whether or not the-court erred in finding the execution void. It was a matter depending on proof, and "the finding on this point is-not made one of the grounds of the motion for a new trial. As-the matter was brought to our notice, we may at least say that it was irregular, unauthorized by law, and such as. should have been quashed, upon proper application. Whether so wholly void, however, as to vitiate all'proceedings under it, is a question we need not now decide.
Non detinet, or words to that effect, is not a good plea under the Code, in an action for personal property. Our system is in some respects more rigid, with regard to answers, than that of most of the States which have adopted the modern new procedures. It does not admit of “general” denials. They must be special to each allegation, and allegations mean statements of facts, not propositions of law. They refer to things to be pleaded, not matters to be argued. To deny that one unlawfully detains property responds to no fact. It may be based upon the respondent’s view of his legal rights. Either the property in plaintiff should be denied, or the fact of the detention ; or, both being admitted, the special matter should be set up which shows the detention to be lawful. Otherwise there is no issue of fact, but a mixed issue of law or fact, inviting that wide range of .evidence, which it is the express design of the Code to limit. Old habit and some recalcitraron against the Code, amongst ° a very respectable class of attorneys, has kept up a tendency to the use of the general issues, as well as the other common law forms. When such pleas are accepted as making an issue, and parties go to trial upon them, it is too late to hold them null and void, although they might have been struck out on motion. But as to the evidence admissible under them, it should be confined to the simple and obvious issues which- they make, so as not to dispense with pleading specially matters of which notice should have been given to the opposite party. This is illustrated by Mr. Newman, in case of a simple denial of title. He says, p. 523 of his work on Pleading and Practice, that under such an answer, defendant might show adverse possession, or any other facts to defeat plaintiff’s title. “But,” -continues the author, “if the defendant intends to rely upon the fact that the property was pawned to him, or that he holds it under a lien, or any other defense, which admits the title in the plaintiff, and possession in himself, he must set forth the facts of the defense in his answer.”
The court did not err in excluding testimony regarding the judgment of the Circuit Court. It is not apparent how the defendant could have been injured by its exclusion, if admissible, as he had himself expressly and positively disclaimed the taking and detention of the mare upon any other right or authority than that of the execution from the justice.
Lest misapprehension should arise, I will not pass in silence a point assumed by appellant, and which seems to be conceded by appellee. It is that a judgment before a justice, in a criminal proceeding for a misdemeanor, is a lien upon all the property of defendant, real and personal, from the time of his arrest.
At the time of the Revised Statutes, when the law was passed which now stands as Sec. 2013 of Gantt's Digest, justices had no criminal jurisdiction whatever. The act applied to prosecutions by indictment in courts of record. It might have very disastrous consequences to apply this act to the proceedings before Justices of the Peace. Their judgments are not usually clothed with the dignity of liens, especially such liens as are not limited to townships, or even counties. How far, or whether or not they are liens, are questions suggested by this case and may become involved in its decision, if the execution from the justice be held only voidable, and not void.
There was error in finding damages beyond the amount °laimed. This practice might lead to surprise and abuse,
The complaint or affidavit is áhvays, before trial, amend-as £0 am0unt of damages, in the discretion of the court, and parties should amend, if they desire more than originally claimed. This error was not cured by the offer to remit, and a new trial should have been granted.
It is not necessary to decide whether the proof supported the amount of damages found, diminished by the remittitur.
There were other grounds for a new trial, but as the case must be remanded, it is not deemed importaút to notice them. They show no error.
Reverse the judgment and remand, for error in overrulthe motion for a new trial, with the usual directions as to further proceedings. | [
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Harrison, J.
The defendant in selling the whiskey acted. •at his peril, and a belief that the minor was of age, however honestly entertained, was no justification or excuse for him. Redmond v. The State, 36 Ark. 58.
Though the evidence offered by him to show that he believed the minor was of age, was admissible in mitigation ■of the punishment, he was not injured or prejudiced by its ■exclusion from the jury, as they assessed the lowest fine.
The court, Mving at the instance of the State correctly instructed the jury, very properly refused to give them similar instructions asked for by the defendant.
Affirmed. | [
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Harrison. J.
When a person convicted of a misdemeanor is, under the provisions of the Act of March 10th, 1877, ordered to- be hired out for the payment of the fine and costs, the term for which he may be hired out, as provided in the fourth section of the act, can not “ exceed one day for each seventy-five cents of the fine and costs.”
If the hirer shall agree to pay more than seventy-five cents a day, the term may be less, and it is the duty of the officer to get as. much as he can. It does not, however, follow that the court can require a greater hire per day than the minimum fixed by the Statute, or direct that the hiring be for a less number of days than one for every seventy-five cents of the fine and costs. Griffin v. The State, ante.
It was error, therefore, to limit the term for which the defendant was to be hired, to one day for every dollar and a half of the fine and costs ; and so much of the judgment is reversed, and the cause is remanded to the court below, with instructions to make such order in relation to the hiring as shall be in accordance with law, and as indicated in this opinion. | [
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Eakin, J.
This is a bill by two of the promoters of, and subscribers to, a newspaper enterprise, against the editor, principal capitalist and sole manager, to enforce an account, and a distribution of the assets among them, in proportion to the amount of their several subscriptions. The bill is filed in behalf of themselves and all others interested, who may come in and make themselves parties. It charges that all the subscribers were, by agreement, to be shareholders in the enterprise to 'the extent of, and in proportion to, their subscriptions. There was a demurrer for want of equity, and also for a defect of parties defendant. This was not insisted upon, however, and the sole defendant answered. As it appears from the subsequent proceedings, that only the parties before the court had paid anything into the concern, it follows, frtim the articles of agreement, that no others can have any interest.
The first and most important question of law arises upon the construction of the articles. The appellant contends that they do not make either a joint stock company or a partnership, but that the stipulation therein, that each subscriber should hold stock to the amount of the sums paid, until he should be repaid by defendant,' was only a mortgage of so much stock to secure repayment. Several important elements in a mortgage are wanting. There was no loan by the several subscribers to Pierce, nor any convey 'anee, by bim to them, of any stock or interests in the concern as a security for any debt. It was a joint undertaking in which Pierce (under the style of H. A. Pierce & Co.) united with others to raise a joint fund for its object. Their respective shares were their own originally, for which they owed each other nothing. Their ownership was born with the enterprise itself, and sprung from the investment of their own capital. They did not derive their interest from each other, and, in case of loss of their capital by failure of the enterprise, had no claim upon each other for repayment. It was, in fact, a conditional sale by complainants to Pierce of their respective shares, upon payment to them of their money, with interest, in the course of a year. Time was, from the nature of things, of the essence of this contract. It would not have been reasonable to have allowed Pierce to delay indefinitely, and then exercise his option of purchasing or not, as he might find the business lucrative or disastrous. He allowed the opportunity to pass, and cannot now claim the privilege, nor object to becoming chargeable with a pro rata share of the capital and profits which his hands. There can be no mortgage without something conveyed from the mortgagor to the mortgagee, and a debt to be paid. The court properly held that there was a partnership, and that the same should be dissolved, and an account taken.
Neither of the two. interlocutory orders made for a reference, fixed the rates, or proportion, in which the plaintiffs were to share in the distribution of the assets. That seems to have been left to the master to determine for himself, upon his own construction of the contract. It was not the better practice, as it was'purely a question of law, and all such should be first settled by the Chancellor, so far as they can be, on the pleadings and evidence before him. The plaintiffs claimed, in their bill, a pro rata according to their respective amounts subscribed. It was not all paid in, and it seems to have been contemplated that it might not be necessary to do so ; but that a less amount might, perchance, serve the purpose of the enterprise. The last clause of the -articles makes it clear that their interests were to be in proportion to the amount subscribed 'and paid in. As this proportion, however, was actually taken as the basis of the ■decree, the omission ‘was not important.
All other questions arise on exceptions to the report of the master, as finally reformed and confirmed by the court. As presented by appellant’s brief, they are as follows :
1. That there was a total disregard of the evidence adduced by the defendant.
The agreement itself constituted the partnership, and the proof of the amounts paid in originally by plaintiffs was sufficient. They were shown by the receipts of defendant, one to Patterson for $150.00, and to Scott for $278.70, and upon these amounts the shares of complainants were apportioned. As to the repayment of any part of these amounts, and as to many other matters connected with the accounts, the evidence was conflicting; and the master, in taking the account, and the court, in modifying it, were not bound to consider the evidence of defendant as conclusive. We find no error upon this point.
2. That the master, as to many of the items, acted with-cut evidence, but was governed by his own experience in newspaper management.
As regards the report, this exception was well founded. Many of the estimates of work done, and the value of materials, are founded upon the master’s own knowledge, of the price lists of the times, and, as he says, the opinions of those most competent to judge. So far as the measurement ■of the work is concerned, and the estimate of it, where legal jprices are fixed, that might be legitimate, but as to other matters, a master should not act upon his own knowledge, or upon his best judgment, derived from conversation with others. In deciding upon facts, his position is analagous to that of a jury, and the evidence upon which he reaches conclusions, should be properly taken on oath, and returned with the report, to be examined by the Chancellor upon exceptions. Values of work and of materials should be proved as other facts, and not collected by the master from his own experience, or from the price lists of the times, or from consultations with others. This would be dangerous, in the first instance, and preclude a party injured from the-proper mode of correction. The master could take judicial notice of such things as courts might, and of prices fixed by law, and might himself inspect and measure woi’k, in the files, provided the files themselves be returned with his report, or be accessible to the court. Otherwise, he must act upon some proof, the best, under the circumstances, that can be adduced.
As it was the duty of defendant to keep books, and prodUCe them, if there be any failure by them to show the full o 3 J J nature and history of the business, the defendant is liable to the strictest account which the nature and character of the business, upon the proof as to that and its value, will justify.
There was no error in refusing to allow defendant anything for his services as editor or manager or for literary work done by others. There was no stipulation for that in the original agreement, and no implied contract as to that,, arises from the nature of the agreement.
There were, in this case, two references and two successive-accounts, to both of which exceptions were made and sustained. It was reasonable to suppose that all legal light had been shed upon the transaction which could be obtained, and the Court undertook the statement of the account for itself. Obviously, from the claim of defendant to exclusive ownership and from the imperfect manner in which his accounts were kept, and from the want of clear and explicit statements of amounts received and expended, and from lapse-of time, an exact accounting has become and remains impossible. In such cases it is the duty of Courts of Equity to approximate substantial justice as nearly as may be.
Passing over the two reports, save in so fai as they afford-, material for estimates, we will consider the statement finally-made by the Court, and which seems to be as well supported' by the evidence as the nature of the case will admit of. The report of the master charged defendant with a balance of' $12,975.25. The statement of the Court reduces this to $7,565.15, reached as follows: He is charged -with the original capital $3,428.70, sums received for publishing delinquent tax lists $5,138.75 ; for other legal advertisements $2,581.50 ; and from other work of all kinds $2,400, making-in all $13,548.95.
He is allowed credits for overcharge in tax lists $648.75 cash paid for paper and other material of all kinds for two years, $1,200 ; office rent $960 ; cash paid printers, $2,975.05 other incidental expenses $200, in all $5,983.80.
The balance is divided to complainants in proportion, as. shown in a former portion of this opinion. The modification was very favorable to defendant, and a review of the evidence discloses, that, in fixing these sums, the court has found some firm ground on legal evidence for each, and that it has-been tender of the rights of appellant.
The only objection which could be made to the account is, that it seems to throw the loss, by wear and tear, of the furniture and machinery of the office, on the defendant; but the evidence shows that it could not have been great, and there was no distinctive proof to show what it was. All of" it was left in his hands, andthere was no ground forthe claim,. ¡■that lie should be credited with the $3,000 of his own money which went to purchase it.' It was firm money and was invested in firm property.
In other respects defendant has been liberally treated in the estimates, both as to charges and credits. To review it ;all would serve no useful purpose ; substantial justice seems to have been done upon the whole case and any better or 'more satisfactory disposition of the tangled mass of confused ■statements, and partial evidence, is utterly hopeless. It is 'the defendant’s own fault that the accounts have not been -clearly kept.
Affirmed. | [
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Olly Neal, Judge.
This is the second time that this case contributions has been before us. In December 1996, appellant Home Care Professionals of Arkansas, Inc., (HCP) filed Articles of Incorporation (Articles) with the State of Arkansas indicating that the nature and purpose of its business was to “engage in the general business of home care for the elderly, and related services.” Over the years, HCP ceased directly providing home-care services and evolved into a home-care referral service.
HCP currently operates as follows. HCP maintains a list of caregivers who are able to provide home-care services. A potential client will contact HCP and state what services they desire. HCP will collect the fees for the service up front and place them in an escrow account. HCP will then find a caregiver willing to perform the service. The client and the caregiver will negotiate a schedule and the terms of the caregiver’s engagement. Once the caregiver completes the service, the caregiver turns in a time-sheet, and HCP distributes the funds from the escrow account minus its forty percent referral fee.
As to the caregivers, a caregiver will approach HCP about being placed upon its referral list. Upon acceptance by HCP, the caregiver will sign an independent-contract agreement with HCP. Paragraph nine of the contract is a non-compete clause and it provides:
The parties to this contract agree that [HCP] has a valid and legitimate interest in the protection of its customer base from appropriation. Therefore, in order to protect this interest, [the caregiver] agrees by entering into this agreement and accepting referrals by [HCP] that he or she will not accept private employment from any client of [HCP] to whom he or she provided services for a period of twelve (12) months from the last due date of referral by [HCP],
Also, at the beginning of their association with HCP, the caregiver is informed that he/she is an independent contractor and is responsible for paying his/her self-employment taxes. The caregiver is responsible for his/her own transportation and supplies. Once the caregiver and client work out a schedule, the caregiver will inform HCP of their schedule. From then on, HCP will administer the caregiver’s schedule, and when the caregiver is unable to work, HCP will schedule a replacement.
The Chief of Contributions subsequently determined that, under Arkansas law, the caregivers qualified as employees. HCP disputed the Chiefs findings, and the matter was certified to the Board of Review (Board). A hearing on the matter was held before a hearing officer.
At the hearing, the following testimony was received. Ed Rolle, former director of the Employment Security Department, testified that he hired HCP to assist with his mother. He said that he stipulated his requirements to HCP, and HCP found an appropriate caregiver. He did not remember screening or selecting the caregiver himself. Mr. Rolle testified that, when he first contacted HCP, a member of HCP’s management brought a caregiver out to meet him and his mother and that, during the visit, the manager surveyed the house where the services were to be provided.
Lisa Randles testified that she was on HCP’s referral list. She described herself as an independent contractor. She said that HCP was not her only source of referrals. Ms. Randles explained that she takes jobs on her own and receives referrals from other sources. She testified that, when she signed on with HCP, she was given a list of the available jobs, and after choosing the jobs that she wanted, she would then interview with the client. Ms. Randles said that the client would pay HCP for the services she performed and that HCP would then pay her.
Linda Schay, HCP’s president, testified that the caregivers are not required to be exclusively listed with HCP. She explained that the purpose of the non-compete clause was to prevent clients from hiring a caregiver without first paying the referral fee. She stated that there were instances where clients had bought out the non-compete clause. Ms. Schay did not think that the non-compete clause gave HCP control over the caregivers. During her testimony, Ms. Schay stated that HCP did not terminate the caregivers; she said that the client makes the decision to terminate. She also denied inspecting a client’s home prior to making a referral.
The Board found that HCP satisfied the first and third statutory exemption requirements found in Ark. Code Ann. § 11 — 10—210 (e) but failed to satisfy the second exemption requirement, found in section 11 — 10—210(e). Because HCP was unable to satisfy the second requirement, the Board ruled that HCP was liable for unemployment insurance taxes based upon the caregiver’s remuneration. An appeal of the decision was brought before our court. In an unpublished opinion, we remanded the case back to the Board for a determination as to whether the remunerations constituted wages. See Home Care Prof Is of Ark. Inc. v. Director, E04-280, slip op. at 3 (Ark. App. June 1, 2005). Upon remand, the Board found that the remunerations qualified as wages. From that decision HCP now brings this appeal.
On appeal, the findings of the Board of Review are conclusive if they are supported by substantial evidence. Barb’s 3-D Demo Serv. v. Director, 69 Ark. App. 350, 13 S.W.3d 206 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Steinert v. Director, 64 Ark. App. 122, 979 S.W.2d 908 (1998). Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
On appeal, HCP urges us to rule that the Board erred when it determined that the remunerated services of the caregivers using HCP as a source of referrals qualify as employment subject to the payment of unemployment insurance taxes. HCP specifically argues that the remuneration received by the caregivers does not constitute wages for the purpose of establishing unemployment insurance liability. In the alternative, HCP argues that, even if the caregiver remuneration qualifies as wages under the relevant statute, HCP bears no liability for unemployment insurance taxes because it satisfies all three statutory requirements for exemption.
Arkansas Code Annotated section ll-10-210(e) (Supp. 2005) provides:
(e) Service performed by an individual for wages shall be deemed to be employment subject to this chapter irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the director that:
(1) Such individual has been and will continue to be free from control and direction in connection with the performance of the service, both under his or her contract for the performance of service and in fact; and
(2) The service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and
(3) The individual is customarily engaged in an independendy established trade, occupation, profession, or business of the same nature as that involved in the service performed.
Subparagraphs (1) through (3) only apply when three precedent conditions are found to exist. See Palmer’s Boutique v. Arkansas Employment Sec. Div., 265 Ark. 571, 580 S.W.2d 683 (1979); McCain v. Crossett Lumber Co., 206 Ark. 51, 174 S.W.2d 114 (1943). The precedent conditions are: (1) that services were performed; (2) by an individual; (3) for wages. Palmer’s, supra; McCain, supra.
HCP first argues that the remunerations were not wages. Wages are defined as “all remuneration paid for personal services, including, but not limited to, commissions, bonuses, cash value of all remuneration paid in any medium other than cash.” Ark. Code Ann. § ll-10-215(a) (Supp. 2005). In making the determination if remuneration is paid, section ll-10-210(e) must be construed strictly against the State with any doubts being resolved in favor of the taxpayer. Palmer’s, supra.
In its order finding that the remunerations qualified as wages, the Board wrote:
[HCP’s] own contract with its clients states that the client is paying [HCP] a “referral fee.” After deducting its referral fee, [HCP] pays the balance to a caregiver for the caregiver’s personal services rendered to the client. The caregivers are paid by [HCP] commensurate with the extent of services and hours of care they provide to [HCP’s] clients. It is clear that the caregivers perform personal services for wages. Therefore, the Board finds that remuneration received by the caregivers qualifies as “wages” under Ark. Code Ann. § ll-10-215(a) and for purposes of Ark. Code Ann. § 11 — 10— 210(e).
Viewing this in a fight most favorable to the Board, we are unable to say that the Board’s decision finding that the remunerations qualified as wages was not supported by substantial evidence. Accordingly, we affirm the Board’s findings.
HCP further argues that, even if the caregivers’ remunerations constituted wages for purposes of unemployment insurance tax liability, the Board erred when it found that it was unable to satisfy subparagraph (2) of the statutory exemption, i.e., the service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed. In resolving this issue, the Board wrote:
In the instant case, caring for the elderly is necessary to [HCP’s] business, and thus providing in-home services is within [HCP’s] usual course of business. Since the evidence does not establish that [HCP] receives a monetary benefit when a simple referral is made, but only when a service by a caregiver is performed for a client, a finding that providing in-home services is within [HCP’s] usual course of business is particularly appropriate.
In regard to the place of business aspect of the second part of the test, an employer’s place of business has been found to include not only the location of a business’s office, but also the entire area in which a business conducts business. See Missouri Association of Realtors v. Division of Employment Security, 761 S.W.2d 660 (Mo. App. 1988); Employment Security Commission of Wyoming v. Laramie Cabs, Inc., 700 P.2d 399 (Wyo. 1985); and Vermont Institute of Community Involvement, Inc., v. Department of Employment Security, 436 A.2d 765 (V1.1981). More specifically, the representation of an entity’s interest by an individual on a premises renders the premises a place of the employer’s business. See Carpetland, [Carpetland U.S.A. v. Illinois Dep’t of Employment Security, 206 Ull.2d 351, 776 N.E.2d 166 (Ill. 2002)]. In the instant case, the caregivers represent [HCP’s] interest on the clients’ premises, not just in a tangential fashion (e.g., satisfactory work by the caregiver may result in future referral), but in the most direct sense, that of performing the very service by which [HCP] profits.
Furthermore, HCP’s Articles provide that its purpose is to provide home-care for the elderly. When we view the evidence in a light most favorable to the Board, we cannot say that the Board’s decision is not supported by substantial evidence and we agree that HCP failed to satisfy subparagraph (2) of the statutory exemption. Because HCP fails to satisfy subparagraph (2), the caregivers are not independent contractors and HCP is not exempt from paying unemployment taxes. Therefore, we affirm the Board’s decision.
Affirmed.
Pittman, C.J., and Bird, Griffen, Roaf, JJ., agree.
Baker, J., dissents. | [
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English, C. J.
At the general election, sixth Septem1880, Richard Q. Shores was elected sheriff of Franklin county; he was commissioned by the G-overnor on the eleventh of September, executed a bond as such, which was approved by the County Judge on the first of October, 1880, and on the eighteenth of the same month took the oath of office.
Pie failed to give bond, as collector, before the first Monday of January, 1881, as required bylaw. The clerk of'the-County Court notified the Governor of the failure, and the-Governor, on the eleventh of January, 1881, appointed and commissioned John P. Falconer as collector, who executed a. bond as such, which was approved by the Circuit Judge on the nineteenth of the same month, and on the same day he-took the oath of office.
In the meantime, on the fourteenth of January, 1881,. Shores made a bond as collector, which on that day was-approved by the County Judge.
On the eleventh of April, 1881, he procured the County Clerk to deliver to him the tax books for 1889, with a warrant for the collection of the taxes of that year ; and on the twenty-fifth of the same month Falconer commenced this-suit against him for the office of collector, etc.
Shores, in his answer to the complaint, relied for defense on the fact that he had made and jarocured the approval of' his bond as collector on the fourteenth of January, 1881.. The plaintiff demurred to the answer; the court overruled, the demurrer, holding the complaint bad, and plaintiff resting, judgment was rendered in favor of defendant, and. plaiutiff appealed.
Before the adoption of the present Constitution the officecoqector of taxes was statutory. The Statute in force-when the Constitution was adopted provided that the sheriff of each county should be ex-officio collector, and before-entering upon his duties as collector should give bond before the first Monday of January of each year, etc. Gantt’s Dig., secs. 5157-9.
Section 46, Article VII., of the Constitution provide» that the qualified electors of each county shall elect one sheriff, who- shall be ex-officio collector of taxes, unless other wise provided- by law, for the term of two years, thereby leaving the office of collector under legislative control.
A person who is sheriff and collector, under existing laws, holds two distinct offices, and is required to give bond as sheriff, and also to give bond as collector. McCabe, ex parte, 33 Ark., 396.
Appellee, Shores, was sheriff when he received his commission, and qualified as such by executing bond and taking the oath of office. But he could not enter upon the duties of the office of collector until he executed bond, as prescribed by law.
He was required to give bond as collector before the first Monday of January, 1881. Acts of March 5, 1875, sec. 12 ; Acts of 1874-5, p. 225.
The Act of twenty-fifth February, 1875 (Acts of 1874-5, p. 165), in effect, declares that when a sheriff shall fail to give the bond required by law, as collector of the revenue, at the time required by law, he shall forfeit his right to the office of collector : and makes it the duty of the clerk of the County Court immediately to notify the Governor of such failure, and of the Governor to appoint some suitable person collector of revenue, and provides that the person so appointed shall hold the office until his successor is elected and qualified; and requires him to qualify and give the bond required by law within ten days after he is notified of his appointment; and if he fail, the Governor is required to appoint some other person, etc.
Appellee failed to give bond in the time prescribed by law; the failure was certified by the clerk to the Governor, who, on account of such failure, declared the office of collector vacant, and appointed and commissioned appellant to fill the vacancy; after all of which appellee made a bond, but that did not help him ; he was too late.
This case is unlike State v. Carnell, 10 Ark., 156, in which it was decided that a sheriff could not be deprived of his office for failing to return his assessment list within the time prescribed by law, without a judicial ascertainment of the delinquency.
There the sheriff was in office, and there was an attempt to oust him for an omission of official duty, without judicial inquiry. Here appellee had not entered into the office of collector, and forfeited his right to do so by failure to give bond as such, and within the time fixed and limited by law. There is no constitutional reason why the Legislature might not entrust to the Governor the ascertainment of such failure.
It is sufficient to say of Boseley v. Woodruff County Court, 28 Ark., 306, that it arose under a different Statute from the one now in question, and the case, on its facts, is not like this.
The giving of a bond by the sheriff, and the time of making it before he enters upon the office of collector' of revenue, is of public importance. The Statute requires it to be given before the first Monday of January. If, in disregard of the law, he may defer it to the fourteenth of the month, he may postpone it through the period prescribed for the collection of the revenue, to the detriment of the public. In other words, he may disregard the time prescribed by law#for him to execute the bond, and fix his own time at pleasure, or as cbnvenient.
The statute fixing the time cannot be treated as directory, because the Legislature has declared the consequences of the neglect; that is, in effect, that the sheriff shall forfeit his right to the office of collector, and the Governor, on being-informed by the county clerk of such failure, shall appoint and commission some person to be collector in his place. Sedgwick on Construction of Statutory and Constitutional Law, second edition, p. 326; Basham, &c. v. Commonwealth, 13 Bush, 36.
It was submitted in argument that the Governor had no power to appoint appellant collector, because the vacancy in the office occurred more’ than six months before the then next general election, citing Sec. 50, Art. YII of the Constitution.
That section provides that: “All vacancies occurring in any office provided for in this article, shall be filled by special election; save that in cases of vacancies occurring in ■county and township offices, six months, and in other offices nine months, before the next general election, such vacancies shall be filled by appointment by the Governor.”
This section applies to elective officers, and - not to the ■office of collector, which, as such, is not filled by the voice of the electors.
The sheriff is elected by the qualified electors, “who,” section 46 of the same article declares, “shall be ex-officio collector of taxes, unless otherwise provided by law.” This, as above observed, leaves the office of collector under legislative control, and doubtless the Legislature has power to provide by law for collectors to be appointed by the 'Governor, or in such other mode as may be directed.
By the acts above cited, passed since the adoption of the Constitution, the Governor is authorized to appoint and commission some suitable person collector of revenue, on the failure of the sheriff to give bond as collector at the time required bylaw, etc., and these acts are in conflict with no provision of the Constitution.
It was further submitted, in argument, that at the time appellant commenced this suit, his bond as collector had not been approved by the Circuit Ccourt in term ; that his title to the office had not, therefore, been perfected, and he was not in a condition to maintain the action.
The Statute requires- the person appointed by the Governor to give the bond require by law within ten days after he-is notified of his appointment, and if he should fail, the Governor is required to appoint some other person.
Appellant was commissioned oir the eleventh of January, 1881, and executed a bond, which was approved on the nineteenth of the same month by the Circuit Judge, in vacation, as authorized by the Act of March 1, 1875. (Mcfe of 1874-5, p. 194.).
He had the right, on such approval of his bond, to enter upon the duties of the office of collector, and to bring suit against an intruder.
To require him to delay entering upon the duties of the office, or to sue an intruder, until his bond should be finally-approved by the Circuit Court in term, might be to postpone his right to collect the taxes, and to sue for the office, until the whole period prescribed by law for the collection' of the public revenue, making tax sales, etc., had transpired, as no term of the Circuit Court might be held in his-county during that time, there being but two regular terms-a year.
The amended complaint, which the court held bad on demurrer to the answer, showed a good cause of action (under Seo. 5748 Gantt’s Dig.), and the answer set up-no valid defense.
Reversed and remanded, with instructions to the court below to sustain the demurrer to the answer, and for further proceedings. | [
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Larry D. Vaught, Judge.
Marc Jess Henley appeals his convictions following a conditional guilty plea for attempt to manufacture methamphetamine, possession of drug paraphernalia with intent to manufacture, and maintaining a drug premises. On appeal he argues that the trial court erred in its denial of his motion to suppress because the evidence supporting his convictions was discovered after a warrantless search of his home. We agree that the evidence was obtained following an illegal search of Henley’s home and should have been suppressed. Accordingly, we reverse and remand.
On the evening of July 21, 2004, Officer Andy Shock of the Faulkner County Sheriff s Office received a call from Investigator Wesley Potts of the Van Burén County Sheriff s Office wanting to talk to Marc Henley about a burglary that occurred in Van Burén County. Potts did not have a warrant, but Shock checked his warrant log and discovered that Henley had a misdemeanor warrant for a failure to appear on a speeding ticket.
Later that night, around 10:00 p.m., Potts and Shock — along with another Van Burén County officer — met at the Eight Mile Store (a convenience store located about a mile from Henley’s home). From there, they drove in two separate vehicles to Henley’s home, arriving at 10:18 p.m. The officers parked their vehicles in Henley’s driveway, behind several other vehicles. After the officers exited their car, armed with flashlights, they looked into the other cars parked in the drive. Shock and Potts then proceeded to the front door of Henley’s home. As they approached the door the officers looked into Henley’s home through a bay window (although the window had a blind covering it, a section of the blind was damaged allowing officers to see inside the home). The officers observed Henley and a female (later identified as Natalie Bailey) inside the home standing around a pool table.
Once Shock and Potts arrived at the front door, they began knocking and shouting for Henley to come to the door. As Potts continued knocking on the door, Shock went back to look through the bay window, where he observed Henley and Bailey under the pool table. Meanwhile, the third officer walked around to the back of the residence.
Eventually Henley opened the front door and was placed under arrest on the misdemeanor warrant and was handcuffed. He was then questioned by Potts about the burglary until Potts was satisfied that Henley was not involved in any Van Burén County burglary. However, when Henley opened the door to exit his home, Shock smelled an overwhelming chemical odor that he associated with the processing of methamphetamine. While Henley was being questioned, Bailey also came outside, where she was subjected to a pat-down search. The search revealed a quantity of an illegal substance (later identified as methamphetamine). She responded to the discovery of the secreted black-zippered bag containing methamphetamine by stating “You can’t tell Marc I gave it to you. He told me to put it in there. He would kill me if I told you that.” At this point the officers asked Henley if he would consent to a search of his home. He refused their request. However, as Henley was being placed in the squad car, he mentioned that he was on probation. Shock then called Kelly Brock, a Faulkner County Probation Officer, who, suspecting narcotic activity, called Detective Todd Mize, a narcotics officer. Once Brock and Mize arrived, Henley and Bailey were taken back into the home. As Henley and Bailey were being watched, officers — primarily Mize — conducted a search of the home. The search revealed the components of a methamphetamine laboratory. Following this discovery, Henley was arrested and eventually convicted of the numerous offenses that are the subject of this appeal.
On appeal, Henley argues that the illegal drugs and prohibited laboratory items discovered in his home should be suppressed because they were discovered as a result of a warrantless search. The State responds that according to one of the conditions of Henley’s probation — which required that he allow a supervising probation officer to visit with him — the entry did not require a warrant. The State alternatively argues that the search was justified because it was a result of his arrest on an outstanding warrant.
In reviewing the trial court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court and proper deference to the trial court’s findings. See Romes v. State, 356 Ark. 26, 144 S.W.3d 750 (2004). As an initial matter, we note that all warrantless searches are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. Bratton v. State, 77 Ark. App. 174, 72 S.W.3d 522 (2002). The burden of proof is on the State to justify the search. Mays v. State, 76 Ark. App. 169, 61 S.W.3d 919 (2001). A warrantless entry into a private home is presumptively unreasonable. Welsh v. Wisconsin, 466 U.S. 740 (1984); Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999). The burden is on the State to prove that the warrantless activity was reasonable. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). With few exceptions, the question of whether a warrantless search of a home is reasonable and hence constitutional must be answered, “no.” Kyllo v. United States, 533 U.S. 27 (2001). On appeal, we make an independent determination based on the totality of the circumstances to ascertain whether the State has met its burden. Norris, supra.
There is no question that Henley’s home was searched without a warrant, and the State does not contend or attempt to prove that there were exigent circumstances justifying a warrant-less search or that the evidence discovered in the search of Henley’s home would have inevitably been discovered through lawful investigatory work. Instead, the State argues that the search was valid because it falls within the “probation exception” to the warrant requirement. At the outset, we note that there is no such exception. Instead, it is common that as a condition to probation or parole a party will consent-in-advance to allow officers to search his person, automobile, or other property in his control. In Cherry v. State our supreme court considered the constitutionality of a typical consent-in-advance agreement that stated:
Any parolee’s person, automobile, residence, or any property under his control may be searched by a parole officer without a warrant if the officer has reasonable grounds for investigating whether the parolee has violated the terms of his parole or committed a crime.
302 Ark. 462, 464, 791 S.W.2d 354, 356 (1990). The court concluded that such consent-in-advance clauses are not constitutionally infirm as long as the consent agreement meets certain criteria. Id. In order to support a warrantless search, the court reasoned, the form signed by the defendant must amount to a consent to search, and the search must have been conducted in accordance with the terms of the consent granted. Id.
Here, however, the officers made an understandable, but serious error by assuming that Henley’s probation agreement contained a typical consent-in-advance provision. Unlike the search language discussed in the Cherry decision and contained in most probation agreements, the only consent-in-advance language in Henley’s Franklin County probation agreement details a consent to visit:
You must report as directed to a supervising officer and permit him or her to visit you in your residence, place of employment, or other property.
We are unable and unwilling to construe the language in Henley’s agreement in any way that would justify something more than a routine visit with the person supervising his release —■ certainly not an intrusive search of Henley’s home. In its brief, the State uses the words search and visit as synonyms. This is a liberty that neither the language nor the law will permit.
The words “search” and “visit” are different words, with distinct meanings. According to the Merriam-Webster Online Dictionary, to “search” means to “look into or over carefully or thoroughly in an effort to find or discover something: as a : to examine in seeking something <searched the north field> b : to look through or explore by inspecting possible places of concealment or investigating suspicious circumstances.” The term “visit” means “to pay a call on as an act of friendship or courtesy.” In this case, Henley’s probation agreement outlining his consent to visit and be visited by his “supervising officer” does not amount to a consent-in-advance to search his home. As the only evidence introduced by the State to support its claim that Henley consented to the officers’ search of his home was the probation agreement, we find that the State has failed to carry its required burden of proof— by clear and convincing evidence — that Henley consented to the search of his home.
In the alternative, the State argues that the search was justified because it followed the arrest of Henley on a valid warrant. Henley responds that the evidence seized from his home followed a pretextual arrest and must be suppressed as dictated by State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215 (2002), and Smith v. State, 265 Ark. 104, 576 S.W.2d 957 (1979). In Smith our supreme court concluded that if the initial arrest is simply a pretext to search, the search cannot stand. Smith v. State, 265 Ark. 104, 576 S.W.2d 957 (1979). The supreme court reasoned that a pretextual arrest exists if the officer would not have gone to the defendant’s home to arrest him otherwise. Id. The court specifically singled-out the misdemeanor nature of the warrant and concluded that the officers would not have arrested the defendant on such a warrant but for their desire to search his home. Id.
Here, the officers’ initial intent in their contact with Henley was to interrogate him about a Van Burén County burglary. Having no warrant for that purpose, Officer Shock found an old misdemeanor warrant for Henley based on his failure to pay a speeding ticket. The officers proceeded to Henley’s home where he was arrested on the outstanding misdemeanor warrant as a pretext to investigate the burglary. We find no fault with the officers’ presence at Henley’s home to question him about the crime they were investigating •— with or without the pretext of the warrant — the officers were legally entitled to investigate the burglary crime by questioning Henley. However, the search following the arrest cannot be justified because the serving of the warrrant was merely a pretext. There was no evidence that these types of warrants were routinely served in person, after 10:00 p.m. Therefore, based on the reasoning contained in Smith and Sullivan, we agree with Henley’s assertion that the evidence seized from his home followed a pretextual arrest and must be suppressed.
Finally, the State mentions — in a footnote — that there is a third justification for the search of Henley’s home because Bailey, a parolee with a consent-to-search provision in her parole agreement, was an overnight guest of Henley. This argument was not developed at trial or on appeal to a sufficient degree to allow review. In order to consider the merits of the State’s assertion we would need far more information regarding Bailey’s status and stay as Henley’s guest. Because the record and the briefs are silent as to any meaningful argument justifying a search of Henley’s home based on Bailey’s consent-to-search, we will not consider the argument on appeal. Therefore, following our review of the totality of the circumstances, we hold that the search of Henley’s home was unreasonable and did not fall within one of the exceptions to the rule that a search must rest upon a valid warrant. Accordingly, the trial court’s denial ofHenley’s motion to suppress is clearly erroneous and is reversed.
Reversed and remanded.
Gladwin and Crabtree, JJ., agree.
Henley’s notice of appeal states that he is appealing “from his conviction for Attempt to Manufacture Methamphetamine, Possession of Drug Paraphernalia with Intent to Manufacture, and Maintaining a Drug Premises.” His notice of appeal further states that the “Judgment and Commitment Order was entered on May 25,2005.” However, the judgment and commitment order was actually entered on July 27,2005. There was a continuance order entered on May 25,2005. We are satisfied that the date reflected in Henley’s notice of appeal was a typographical error, and the fact that the notice of appeal states that Henley is appealing from the judgment and commitment order is adequate to address the merits.
By way of contrast, the other actor in this case, Bailey, was a Faulkner County parolee that had a clause in her parole agreement that mirrored the visitation clause in Henley’s, but it also had a search provision similar to the one discussed in Cherry.
Moreover, at the time of the search, Henley was on “unsupervised probation” and therefore did not have a “supervising officer” that he was required to routinely visit. Furthermore, the probation officer who searched his home was neither his current nor former “supervising officer.” She was from a different county and had no ongoing relationship with Henley. | [
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Olly Neal, Judge.
This is an appeal from the Arkansas Workers’ Compensation Commission’s (Commission) decision that appellant, Phillip Clairday, failed to prove by a preponderance of the evidence that he was entitled to temporary-total-disability compensation after April 24, 2003. For reversal, appellant argues that there is no substantial basis supporting the Commission’s findings that the surgery he requested was not causally related to his April 30, 2002, work-related injury. We reverse and remand.
The facts are these. Appellant worked for appellee Lilly as a forklift technician, mechanic, and delivery driver. On April 30, 2002, while performing employment services, appellant was injured when he reached down to release a boom on a chain and it pulled him “straight back down,” immediately causing him pain in his lower back. Appellant reported the incident and was seen by a doctor on May 1. The injury was accepted as compensable and medical benefits were awarded.
During his treatment, appellant saw numerous doctors. In reversing the administrative law judge and denying appellant’s claim for additional temporary-total disability, the Commission stated that it gave greater weight to the opinions of Drs. Korn-blum, Sorenson, Schnapp, Gera, and Moore, stating:
The Full Commission recognizes that the claimant continued to receive some pain management after the end of the claimant’s healing period on April 24,2003. Nevertheless, the persistence of pain does not prevent a finding that the claimant’s healing period is over. Mad Butcher, Inc, v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The Full Commission also recognizes Dr. Eubanks’ statement in February 2004, nearly two years after the compensable injury, that there may have been a “misdiagnosis” and that the claimant might need surgery. This speculative opinion by Dr. Eubanks was never confirmed in the record. The Full Commission attaches great weight in the present matter to the expert opinions of Dr. Kornblum, Dr. Sorenson, Dr. Schnapp, Dr. Gera, and Dr. Moore. None of these physicians opined that the claimant remained within his healing period or that there had been a misdiagnosis, and Dr. Schnapp expressly opined that the claimant had reached maximum medical improvement [MMI] as of April 24, 2003. The Full Commission reverses the administrative lawjudge’s award of temporary total disability compensation after April 24, 2003.
This appeal followed. In reviewing decisions of the Commission, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirms the decision if it is supported by substantial evidence. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Geo Specialty, supra. It is the Commission’s function to determine witness credibility and the weight to be afforded to any testimony; the Commission must weigh the medical evidence and, if such evidence is conflicting, its resolution is a question of fact for the Commission. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). The Commission’s resolution of the medical evidence has the force and effect of a jury verdict. Jim Walter Homes v. Beard, 82 Ark. App. 607, 120 S.W.3d 160 (2003).
Our supreme court has said that “temporary total disability” is that period within the “healing period” in which the employee suffers a total incapacity to earn wages. Fred’s Inc., v. Jefferson, 361 Ark. 258, 206 S.W.3d 238 (2005). Our statutes define “healing period” as “that period for healing of an injury resulting from an accident.” Ark. Code Ann. § 11-9-102(12) (Repl. 2002). The healing period ends when the underlying condition causing the disability has become stable and nothing in the way of treatment will improve that condition; the determination of when the healing period has ended is a factual determination for the Commission and will be affirmed on appeal if supported by substantial evidence. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002); K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002).
We hold that substantial evidence does not support the conclusion of the Commission. The Commission stated that it gave greater weight to the opinions of Drs. Kornblum, Sorenson, Schnapp, Gera, and Moore, and it was correct in its assertion that none of them opined that appellant remained within his healing period or that there had been a misdiagnosis. However, the record does not reflect that any of these doctors, other than Dr. Schnapp, gave an opinion or were asked to give an opinion as to whether appellant had reached the end of his healing period. Nevertheless, Dr. Moore, a neurosurgeon, opined, even after it was determined that appellant had reached MMI, that “an EMG/Nerve Conduction Velocity Study [NCV] might be of some value as well as myelographic survey with contrasted CT if this has not already been done[.]” These tests are diagnostic in nature. We recognize that the Commission is not required to believe the testimony of any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief and furthermore that the Commission has the authority to accept or reject medical opinions and determine their medical soundness and probative force. See Brotherton v. White River Area Agency, 93 Ark. App. 432, 220 S.W.3d 219 (2005); Jim Walter Homes v. Beard, supra. The Commission here, however, did not reject Dr. Moore’s medical opinion that appellant needed further medical treatment; instead, it specifically relied on him and gave great weight to his expert opinion. As such, we hold that the Commission erred in determining that appellant failed to prove by a preponderance of the evidence that he was entitled to temporary-total-disability compensation after April 24, 2003, as he clearly was in need of the additional medical testing as recommended by Dr. Moore’s expert opinion on which the Commission relied.
Reversed and remanded.
The EMG/NCV tests the nerves and muscles of the entire lower extremity. The EMG portion of the test is used to record the electrical activity in the muscles and can diagnose diseases of the nerves and muscles. Dr. Matthew Rockett, D.P.M., Electromyography (EMG)/Nerve Conduction Velocity (NCV), at, http://podiatrynetwork.com; see also, The Sloane-Dorland Annotated Medical-Legal Dictionary (West 1987). The NCV portion of the test evaluates the health of the peripheral nerve by recording how fast electrical impulse travels through it. Dr. Matthew Rockett, D.RM., Electromyography (EMG)/Neri>e Conduction Velocity (NCV), at, http://podiatrynetwork.com. A myelogram is done to detect narrowing of the spinal canal or abnormalities of the nerves branching off the canal, which may be caused by spinal stenosis, herniated disc, a tumor or infection; it is usually accompanied by a CT scan and may help to verify the cause of pain that could not be found by other imaging methods. Id.-, see also THE Sloane-Dorland Annotated Medical-Legal Dictionary (West 1987). | [
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Larry D. Vaught, Judge.
Appellant Walter “Tony” De-shazo appeals his conviction following a jury trial in Sevier County Circuit Court for possession of drug paraphernalia with intent to manufacture methamphetamine and possession of a controlled substance (methamphetamine). He was sentenced to eight years in prison on the paraphernalia charge with a fine of $15,000 and five years in prison on the possession of a controlled substance charge with afine of$10,000, sentences to run consecutively. He argues on appeal that the trial court erred in denying his motion to suppress because the sheriff did not have probable cause to enter his home without a search warrant; that there was insufficient evidence to prove he was in possession of the drug paraphernalia with the requisite intent; and that there was insufficient evidence to prove that the amount of methamphetamine found was a “usable” amount. We find no error and affirm.
This case involves the search of a house and property owned by the estate of Marjorie Persson that was rented to appellant. Randall Wright, attorney for the estate, testified that appellant received a notice to vacate the premises on May 31, 2002. Mr. Wright then filed a complaint and notice of intent to issue a writ of possession against appellant on June 14, 2002. Mr. Wright stated that he had a conversation with appellant on June 24, 2002, in which appellant indicated that he wanted to purchase the property from the estate. Mr. Wright stated that he sent several letters to appellant following this conversation; however, appellant never responded. Mr. Wright testified that on June 27, 2002, he requested that an Order for Immediate Possession and a Writ of Possession be issued and served on appellant.
Laurie Green, Circuit Clerk of Sevier County, testified regarding the civil filings in the unlawful detainer suit against appellant. She stated that an Order for Immediate Possession and a Writ of Possession were filed on June 27, 2002, but just the order was sent to appellant’s house. She admitted that she did not have a copy of a return of service for the Writ of Possession.
On September 20, 2002, deputies from the Sevier County Sheriffs Office served an Order of Immediate Possession on appellant. Appellant responded by telling the officers that he hoped they did not have to return and drag him off the property. The Order of Immediate Possession stated that it was filed on June 27, 2002, that appellant had “failed to appear or file any objections to the issuance of a writ of immediate possession,” and that “the Plaintiff [was] entitled to immediate possession of the premises; that the Clerk is directed to issue a writ of possession as directed by Ark. Code Ann. Sec. 18-60-307 (1987).” The officers told appellant that he had a week to vacate before they came to claim the premises.
On September 27, 2002, the officers returned to claim possession of the property. The doors were locked, and no one answered their knocks. Sheriff John Partain was in the process of contacting Mr. Wright regarding whether the officers should force entry into the house or wait on a key when Cindee Roberts appeared at the door. She told the officers that she had been asleep and had not heard their knocking. She then told the officers that appellant was not there, and she did not know where he was. Sheriff Partain told Cindee that she needed to find appellant. After she left, Sheriff Partain told his deputies to do a “protective sweep” outside of the house to make sure that appellant was not there. During this sweep, the officers discovered appellant’s truck parked behind the house. Sheriff Partain then asked the officers to continue looking for appellant in the house, the basement, and outside. Sheriff Partain testified that he believed appellant had a violent history, wanted to secure any weapons that appellant could get to, and needed to determine what type of possessions appellant had in the home for removal purposes. During this second sweep, the officers found weapons and what appeared to be drug paraphernalia in the house. Sheriff Partain immediately halted the search and sent for a warrant. The warrant was issued — based on the preliminary items found during the search of the house — and this evidence was used to convict appellant.
Preservation of appellant’s right against double jeopardy requires that we consider appellant’s challenge to the sufficiency of the evidence first even though it was not listed as his first point on appeal. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). In this case, appellant moved for directed verdict at the close of the State’s case and then at the close of his case. Ordinarily, this would be sufficient to preserve the issue of sufficiency of the evidence for appellate purposes. However, as the State points out in its brief, appellant failed to renew his directed-verdict motion after the State’s rebuttal testimony. Our procedure rules require that a motion for a directed verdict be brought at the “conclusion of the evidence presented by the prosecution and again at the close of the case . . . .” Ark. R. Crim. P. 33.1. In King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999), our supreme court stated that “[c]lose of the case means close of the whole case, in other words, after the last piece of evidence has been received.” Id. at 595, 999 S.W.2d at 185. “Even if a defendant renews his motion at the close of his case-in-chief, the requirement of the rule to renew the motion at the ‘close of the case’ obligates the defendant to renew the motion again at the close of any rebuttal case that the State may present in order to preserve the sufficiency issue for appeal.” Id. at 595, 999 S.W.2d at 185 (citing Rankin v. State, 329 Ark. 379, 948 S.W.2d 347 (1997)). Because appellant did not renew his directed-verdict motion following the State’s rebuttal testimony, his sufficiency arguments are not preserved for appeal and we will not reach the merits of his argument.
When reviewing the denial of a motion to suppress, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to a reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).
Pursuant to Ark. Code Ann. § 18-60-307(a) (Repl. 2003), a landowner who seeks to have another party removed from property must file a complaint in circuit court and direct the sheriff to serve upon the named defendant a notice in the following form:
“NOTICE OF INTENTION TO ISSUE WRIT OF POSSESSION”
You are hereby notified that the attached complaint in the above styled cause claims that you have been guilty of . . . [unlawful detainer] . . . and seeks to have a writ of possession directing the sheriff to deliver possession of the lands, tenements, or other possessions described in the complaint delivered to plaintiff. If, within five (5) days, excluding Sundays and legal holidays, from the date of service of this notice, you have not filed in the office of the circuit clerk of this county a written objection to the claims made against you by the plaintiff . . ., then a writ of possession shall forthwith issue from this office directed to the sheriff of this county and ordering him to remove you from possession of the property .... If you should file a written objection .. . within five (5) days, excluding Sundays and legal holidays, from the date of service of this notice, a hearing will be scheduled by the circuit court of this county to determine whether or not the writ of possession should issue as sought by the plaintiff.
The statute goes on to explain that if the defendant does not file an objection within the five-day period, the clerk of the circuit court “shall immediately issue a writ of possession directed to the sheriff commanding him or her to cause the possession of the property... to be delivered to the plaintiff without delay, which the sheriff shall thereupon execute in the manner described in § 18-60-310.” Ark. Code Ann. § 18-60-307(b). Arkansas Code Annotated section 18-60-310 (Repl. 2003) requires the sheriff to notify the defendant of the writ by delivering a copy to the defendant or any person authorized to receive summons on behalf of the defendant. If within eight hours of receipt of the Writ of Possession, the sheriff cannot locate such a person at their normal place of residence, the sheriff may serve the writ by posting a copy conspicuously on the front door of the property described in the complaint. After twenty-four hours from either face-to-face delivery or door delivery, if the defendant remains in possession of the property, the sheriff “shall notify the plaintiff or his or her attorney of that fact and shall be provided with all labor and assistance required by him or her in removing the possessions and belongings of the defendants from the affected property to a place of storage . . . .” Ark. Code Ann. § 18-60-310(c)(l).
In this case, the law enforcement officers never served appellant with a Writ of Possession as required by the statute. Instead, they served him with an Order for Immediate Possession. It is apparent from the statute, testimony, and documents themselves that there is a difference between an “order” and a “writ.” The circuit clerk testified that, based on court records, an Order of Immediate Possession was signed by the judge and filed on June 27, 2002, and a Writ of Possession was also filed on that same day. The order was served on appellant on September 20, 2002, but the writ never was. The documents themselves illustrate that the judge issues the Order of Immediate Possession granting the property owner the right to repossess the property and that the order directs the court clerk to issue a writ. Therefore, for all practical purposes, the Order of Immediate Possession and the Writ of Possession accomplish the same thing —• entitling the plaintiff to possession of the land.
In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court recognized the good-faith exception to the exclusionary rule, a judicially created remedy designed to safeguard against future violations of Fourth Amendment rights. Noting that the purpose of the exclusionary rule was to deter police misconduct, the Court observed that:
where the officer’s conduct is objectively reasonable, excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that . . . the officer is acting as a reasonable officer would and should act in similar circumstances. Excluding the evidence can in no way affect his future conduct unless it is to. make him less willing to do his duty.
Leon, 468 U.S. at 919-20 (quoting Stone v. Powell, 428 U.S. 465 (1976) (White, J., dissenting)). At issue in Leon was a defective search warrant, but the Court has since extended the good-faith exception to a warrantless search permitted by a state statute that was later ruled unconstitutional, Illinois v. Krull, 480 U.S. 340 (1987), and to a search incident to an arrest that was based on erroneous information, Arizona v. Evans, 514 U.S. 1 (1995). In these decisions, the Court has emphasized that the exclusionary rule should be applied only where the goal of deterrence can be achieved. Moreover, when a law enforcement officer inadvertently discovers evidence of a crime while acting in his capacity as an officer in a civil action, he cannot be said to have conducted an illegal search and seizure. Poage v. State, 27 Ark. App. 108, 766 S.W.2d 622 (1989).
We hold that the trial court did not clearly err in finding that the sheriff in this case acted in good-faith reliance on a facially valid court order in executing the Order of Immediate Possession. The sheriff, relying upon a mandate from the court, executed an order granting immediate possession to the plaintiff. He was of the understanding that he had complied with the statutory requirements, and when he returned on September 27, 2002, he believed he had the legal right to repossess the property for the plaintiff. Moreover, the sheriffs actions in giving appellant a week to comply with the order — six days longer than the time period statutorily required — and in immediately halting the search once evidence of a criminal nature was found so as to secure a proper search warrant are illustrative of the sheriff s good-faith effort to comply with the order. Furthermore, based on the totality of the circumstances, we do not believe that suppressing the evidence in this case would serve the remedial purposes of the exclusionary rule.
Affirmed.
Crabtree and Baker, JJ., agree. | [
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Sam Bird, Judge.
This appeal involves two orders of contempt against attorney Ann Donovan for failing to appear on behalf of her client in the Madison County Circuit Court. In the first order, entered on November 18, 2004, the circuit court sen tenced Donovan to one day in jail and a $50.00 fine, both suspended “conditioned on her not having any similar occurrences.” In an order entered on March 11, 2005, the court found Donovan guilty of contempt based upon a second failure to appear. She was sentenced to another day in jail and another $50.00 fine, and her 2004 suspended sentence was revoked. She was ordered to report to the Madison County sheriff to serve her two days in jail and pay her two $50.00 fines. Donovan filed a motion for new trial, which was deemed denied by the trial court on April 14, 2005.
Although Donovan does not appeal the contempt order of November 18, 2004, she appeals the order ofMarch 11, 2005, and the denial of her motion for new trial. She raises two points, contending that the trial court erred 1) in executing her suspended sentence for the court’s prior finding that she was in contempt, and 2) in finding her guilty of criminal contempt of court without advising her of her due process rights under the United States and Arkansas Constitutions.
The State responds that Donovan’s arguments are moot because, in the absence of a stay or a request for a stay, the new trial she seeks will not undo the penalty she has apparently already endured. Alternatively, the State responds that the points now raised are not preserved for review. We do not agree that Donovan’s arguments are moot. The propriety of a contempt order is not moot when it is not apparent from the record that a fine has been paid. Taylor v. State, 76 Ark. App. 279, 64 S.W.3d 278 (2001) (citing Central Emergency Med. Serv., Inc. v. State, 332 Ark. 592, 966 S.W.2d 257 (1998), and Minge v. Minge, 226 Ark. 262, 289 S.W.2d 189 (1956)). It is not apparent from the record before us that Donovan’s fine has been paid; therefore, her case is not considered moot.
For the reasons explained herein, we hold that the first point on appeal can now be raised but the second point is not preserved for our review. We reverse on the first point because the trial court erred in executing Donovan’s suspended sentence.
Procedural History
On November 9, 2004, Donovan appeared pro se at a show-cause hearing to determine whether she should be held in contempt of court for failure to appear at her client’s criminal trial on October 12, 2004. The trial court’s subsequent order of November 18, 2004, reflected the court’s finding that Donovan was in contempt as well as the court’s sentence to the $50.00 fine and the day in jail, both suspended.
Donovan appeared pro se before the trial court at a second contempt hearing on March 8, 2005. This hearing was conducted to determine whether she should be held in contempt of court for failing to appear for a trial date in her client’s behalf on January 11, 2005. Donovan testified to the court as follows:
[O]n the fourteenth of December I called the court and asked because the crime lab was still not in, that this matter be continued[.] I was told it would be continued to January, to the January setting[.] I didn’t know what date it was and I don’t believe the Court did at that point in time. On the — I talked to my client on the fourteenth. ... I was never apprised of the January 11 date by my client.
Donovan further testified that she had no actual knowledge of the January 11 court date, that she would have made arrangements to attend had she known of the specific date, and that her client knew of the January 11 date because he had kept in touch with a co-defendant.
The trial court, ruling from the bench, found Donovan in contempt of court. Noting her testimony that she had practiced before the court for many years, the court found that she was aware of the pattern of moving cases to the next court date, which was regularly the second Tuesday of the following month. The court’s subsequent order of March 11, 2005, reflects the following:
Based on the Court records which show that [Donovan] and her client, Cheyenne B. Evans, Sr. had notice of the January 11, 2005, trial date, Defendant Cheyenne B. Evans, Sr. appeared at the appropriate time but the Respondent Ann Donovan did not appear, nor did she contact this Court. Also in the recent past, Ms. Donovan has on more than one occasion failed to be in Court or have a valid reason for her absence.
This Court finds that Attorney Ann Donovan is in contempt of this Court by failing to appear for her client’s trial, and orders her to pay a $50 fine and to serve one (1) day in the Madison County Jail, and revokes the previous suspended sentence in the Order of November 9, 2004, that on March 12, 2005, at 8:00 a.m. she shall turn herself in to Madison Sheriffs Office to serve her Two (2) day jail sentence and pay her $100.00 fine.
1. Whether the trial court erred in executing a suspended sentence for a prior finding that Donovan was in contempt of court
In her first point, Donovan contends that the trial court erred in executing the suspended sentence it had imposed in the November 2004 order. The State responds that this issue is not preserved for appellate review because Donovan did not object below. In her reply brief, Donovan answers that the point can be raised because it involves an illegal sentence, an issue that can be raised for the first time on appeal. We agree that the execution of the suspended sentence was illegal and therefore can now be raised.
Citing J.M. Harrison v. Terry Dairy Products Co., Inc., 225 Ark. 953, 287 S.W.2d 472 (1956), Donovan argues that the execution of her suspended sentence should be reversed as a matter of law. She asserts that a sentence is remitted when a court imposes a suspended sentence upon one whom it has just found guilty of contempt of court, and the court may not later revoke the suspended sentence as it can in an ordinary criminal case.
Our supreme court has noted the apparent lack of authority for a trial court to indefinitely suspend sentences in contempt cases. Id. (citing Stewart v. State, 221 Ark. 496, 254 S.W.2d 55 (1953)). Here, jail time and a fine were assessed and suspended by the trial court’s order of November 18, 2004, but no time period was given for the suspension. We hold that the trial court erred in ordering this indefinite suspension.
Furthermore, Donovan’s one-day suspended sentence, entered by the trial court’s order of November 18, 2004, expired on November 19, 2004. A sentence is imposed when a court pronounces a fixed term of imprisonment as opposed to simply specifying a definite period of probation, and the probationer can be required to serve only the remainder of the time imposed. Lyons v. State, 35 Ark. App. 29, 813 S.W.2d 262 (1991); Gautreaux v. State, 22 Ark. App. 130, 736 S.W.2d 23 (1987); see also Ark. Code Ann. § 5-4-307 (Repl. 2006). Thus, on March 11, 2005, there was no remainder of the jail time previously imposed, and the trial court erred as a matter of law in executing the suspended sentence on that date.
We reverse and dismiss the execution of Donovan’s suspended sentence for the one-day sentence to jail and the $50.00 fine that had been imposed on November 18, 2004.
2. Whether the trial court erred in finding Donovan guilty of criminal contempt without advising her of her due process rights under the United States and Arkansas Constitutions
In this point on appeal, Donovan requests that we reverse and dismiss the trial court’s second order of contempt, entered on March 11, 2005. Donovan contends that she was not advised of her due process rights under the United States and Arkansas Constitutions, including the rights to notice of the charge against her, to a jury trial, to the presumption of innocence, and to assistance of counsel. She acknowledges being served with an order to show cause and notice, but she argues that it was not specific about why she was being charged with contempt. She asserts that she was not informed about any of her constitutional rights or potential penalties for the charge, nor of her right to an attorney and to the appointment of an attorney should she not be able to afford one. She also asserts that she was put in the position of having to show the court why it should not find her in contempt rather than having the State prove that she was guilty of contempt beyond a reasonable doubt. Finally, Donovan asks that our supreme court “reconsider and expand its own rulings regarding the right to a jury trial for purposes of determining the applicability of the constitutional right to a jury trial under the Arkansas Constitution.”
Criminal penalties may not be imposed on an alleged con-temnor who has not been afforded the protections that the Constitution requires of criminal proceedings. Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988). The Due Process Clause, as applied in criminal proceedings, requires that an alleged contem-nor be notified that a charge of contempt is pending against him and be informed of the specific nature of that charge. Id. If the failure to comply with a judge’s order is indirect contempt, that is, outside of the trial judge’s presence, the alleged contemnor is entitled to the due process protections of notification of the accusation and a reasonable time to make a defense. Ivy v. Keith, 351 Ark. 269, 92 S.W.3d 671 (2002). Before a person can be held in contempt for violating a court order, the order must be definite in its terms, clear as to what duties it imposes, and express in its commands. Id. In Perroni v. State, 358 Ark. 17, 186 S.W.3d 206 (2004), our supreme court noted, “[T]o date, this court has only held that due process requires, in criminal contempt proceedings, that an alleged contemnor be notified that a charge of contempt is pending against him and be informed of the specific nature of that charge.” Id. at 29, 186 S.W.3d at 214 (citing Fitzhugh v. State, supra).
Our supreme court has repeatedly observed that an objection first made in a motion for new trial is untimely. Lee v. Daniel, 350 Ark. 466, 91 S.W.3d 464 (2002). The Lee court explained:
First, we point out that, when a motion for new trial has been deemed denied in accordance with Ark. R. App. P.-Civ. 4(b) (1), the only appealable matter is the original judgment or order. See Monk v. Farmers Ins. Co., 290 Ark. 38, 716 S.W.2d 201 (1986). This court has also repeatedly held that an objection first made in a motion for new trial is not timely. For example, in Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999), this court declined to reach an equal protection argument, holding that it would not address a constitutional issue if it was not brought to the trial court’s attention for a ruling during trial or at some point prior to the entry of final judgment. In Selph v. State, 264 Ark. 197, 570 S.W.2d 256 (1978), this court noted that the reason for requiring an objection before the trial court is to discourage “sandbagging” on the part of lawyers who might otherwise take a chance on a favorable result, and subsequently raise a constitutional claim if the gamble did not pay off. Selph, 264 Ark. at 204, 570 S.W.2d 256. See also Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980); Hodges v. State, 27 Ark. App. 154, 767 S.W.2d 541 (1989) (allowing a party to raise an objection for the first time in a motion for new trial would give them “license to he behind the log,” waiting to see if they obtain an adverse verdict before complaining about any alleged irregularities).
Lee, 350 Ark. at 476-77, 91 S.W.3d at 470-71. See also Ivy v. Keith, 351 Ark. at 282, 92 S.W.3d at 679 (refusing to consider constitutional claims not raised to the trial court that an attorney found in criminal contempt was deprived of due-process rights to counsel and a jury trial and that the burden was impermissibly shifted); Hodges v. Gray, 321 Ark. 7, 18, 901 S.W.2d 1, 6 (1995) (refusing to consider lack-of-notice and opportunity-to-defend claims in a contempt appeal when they were not raised below).
Here, the contempt order ofMarch 11, 2005, made no mention of constitutional issues, nor, insofar as shown in the abstract, were any constitutional arguments raised to the trial court. It was only in the motion for a new trial, filed on March 15, 2005, that Donovan claimed that she had been denied her consti tutional rights with regard to the contempt proceeding. Because her claims were not raised to the trial court until being presented in the motion for new trial, they are not preserved for appellate review. We therefore affirm the second conviction of contempt, entered on March 11, 2005.
Reversed in part and affirmed in part.
Neal and Baker, JJ., agree. | [
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Sam Bird, Judge.
Michael Farler appeals a decision of the Worker’s Compensation Commission that denied his claim for multiple injuries sustained in an automobile accident on January 13, 2004. He contends that his claim was compensable because it fell within an exception to the “going and coming rule.” Appellee City of Cabot, who was Farler’s employer at the time of the accident, and appellee Arkansas Municipal League, the City’s insurance carrier, contend that this case does not fall within any such exception; further, they contend that Farler was not in the course of his employment and was not providing employment services when the accident occurred. We agree with appellees, and we affirm the Commission’s decision.
At the hearing before the administrative law judge, Farler testified that he was employed by the City of Cabot as an operator at the water treatment plant. His duties included maintaining six wells “within a mile and a half of the . . . plant, off of Highway 236,” and responding to “call outs” for such things as water quality complaints, computer problems, and electronic failures. The City provided him with a truck, cell phone, pager and laptop computer; he used the truck to answer the call outs and to check the wells. His work weeks began on Saturdays, and he sometimes had “on call duty” Saturday and Sunday. Monday was his day off, but he was on call Monday night. He received extra pay of twenty-five dollars each day of his weekend call, whether or not he actually was called out to work, and on weekdays he was paid an additional two hours for being on call at night.
Farler testified that his accident occurred on Tuesday, January 13, 2004, and that he had been on call the weekend before. He said that he had not gone to work on Monday because he had been sick. He testified regarding the circumstances that surrounded the vehicular accident in which he was injured:
The Friday before the weekend I would have taken the laptop and gotten in the truck with all of the other equipment and [gone] home. I would then have gotten my pay over the weekend.
No, I did not go to work on Monday. I was on call on Monday evening even though I did not go to work. If I had gotten a call I would have been expected to go out. If something had happened I would have been expected to monitor the system or make whatever arrangements that were necessary.
I was supposed to be on my duty station by 7:00 a.m. On Tuesday morning I was on my way to work. The accident happened at roughly ten minutes before 7:00 a.m. I was three-quarters of a mile from the water plant, turning off Highway 31 onto 236. The whole time that morning until I arrivedTuesday morning, I was on call.
Farler stated that conditions were foggy, damp, and “semi-dark.” He testified, “The next thing I know, I hear tires squalling and I am being shoved sideways across the road into the telephone pole.” He was hit on the driver’s side by another truck, and he had to be cut out of his vehicle.
On cross-examination, Farler testified:
[A]t the time of the accident I was proceeding to this water plant from my home on Highway 31. Correct, I had not reported to work yet that particular day. On Monday after having this weekend work, I would report to work at 7:00 a.m. and I would do my regular normal duties for a Monday, Tuesday, or Wednesday. At 4:00 p.m. that afternoon I would have laptop duty. With that duty I have to be prepared to monitor certain readings at the plant. That responsibility would carry over until I drive into work at 7:00 a.m. the next day. . . .
When the accident happened, it was my week to do weekend duty and then laptop duty. It happens that I did not go to work on Monday at 7:00 a.m. because I was off sick that day. I was able to be home at four that afternoon and do any laptop work that needed doing. It wasn’t until the next day, Tuesday, sometime before 7:00 a.m. that I was driving to work when the accident happened.
Farler said that he was not using his laptop or cell phone when the accident occurred, nor was he responding to a call on his pager as he traveled to work. Under questioning by the law judge, Farler testified that he routinely checked in at the plant before making his rounds to the wells.
A compensable injury is an “accidental injury .. . arising out of and in the course of employment . . . .” Ark. Code Ann. § 11-9-102(4) (A) (i) (Supp. 2003). An injury is not compensable if it is “inflicted upon the employee at a time when employment services were not being performed.” Ark. Code Ann. § 11-9-102(4)(B)(iii). When an employee is doing something that is generally required by his or her employer, the employee is performing employment services. White v. Georgia-Pacific Corp., 339 Ark. 474, 478, 6 S.W.3d 98, 100 (1999); Ray v. Univ. of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999). The phrase “performing employment services” is synonymous with the phrase “acting within the course of employment,” in that the test for both is whether the injury occurred within the time and space boundaries of employment, when the employee was carrying out the employer’s purpose or advancing the employer’s interests directly or indirectly. Collins v. Excel Spec. Prods., 347 Ark. 811, 69 S.W.3d 14 (2002).
An employee traveling to and from the workplace is generally not acting within the course of employment; the going-and-coming rule ordinarily precludes recovery for an injury sustained while an employee is going to or returning from work. Moncus v. Billingsley Logging, 93 Ark. App. 402, 219 S.W.3d 680 (2005). One rationale for this general rule is that all persons, including employees, are subject to the recognized hazards of travel to and from work in a vehicle. See id.; Swearengin v. Evergreen Lawns, 85 Ark. App. 61, 65, 145 S.W.3d 830, 832 (2004); American Red Cross v. Hogan, 13 Ark. App. 194, 681 S.W.2d 417 (1985). There are exceptions to the going-and-coming rule when the journey itself is part of the employment service, such as traveling men or women on business trips and employees who must travel from job site to job site. Linton v. Arkansas Dep’t of Correction, 87 Ark. App. 263, 190 S.W.3d 275 (2004).
The decision of the Commission, adopted from the opinion of the administrative law judge, included the following discussion of exceptions to the going-and-coming rule:
[A]n employee... must still be engaged in a work-related task at the time of injury.
1) the premise exception has been eliminated, (where an employee is injured while in close proximity to the employer’s premises at the time of injury). Hightower v. Newark Public School System, [57 Ark.App. 159, 943 S.W.2d 608 (1997).]
2) transportation provided by the employer does not automatically make the claim compensable, there must be a nexus or connection between the travel and employment, (transportation provided as part of compensation, transportation provided because the employee was perpetually “on call”, transportation customarily supplied to all employees). Arkansas Power and Light Company v. Cox, 229 Ark. 20, 313 S.W.2d 91 (1958),..., Campbell v. Randal Tyler Ford Mercury, 70 Ark. App. 35, 13 S.W.3d 797 (2000), Swearingen v. Evergreen Lawns, 85 Ark. App. 61, 145 S.W.3d 830 (2004), Lepard v. West Memphis Machine & Welding, 51 Ark. App. 53, 908 S.W.2d 666 (1995).
When a workman is so injured, while being transported in a vehicle furnished by his employer as an incident of the employment, he is within,“the course of his employment”, as contemplated by the Act. In other words, when the vehicle is supplied by the employer for the mutual benefit of himself and the workman to facilitate the progress of the work, the employment begins when the workman enters the vehicle and ends when he leaves it on the termination of his labor. (Emphasis Added.)
3) travehng salesman the journey is considered part of the work and injuries sustained while travehng are compensable.
The travel must be something that is required by the employer or the nature of the job, Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997), American Red Cross v. Hogan, 13 Ark.App. 194, 681 S.W.2d 417 (1985), Coble v. Modern Business, 62 Ark. App. 26, 966 S.W.2d 938 (1998). accident, and he was not performing his duties of checking wells or responding to customers. He was merely driving to the plant. Accordingly;... the claimant cannot meet his burden of proof under either the “employment services” test or the going and coming rule.
Arguably, the claimant falls within the second or third category, but he was still not performing a work-related task at the time of the accident.
In summary, the employee in this case is provided transportation by his employer in a job that requires travel and he is subject to being “on call”, for which he receives remuneration. The Court has reminded the Commission to focus on the activity occurring at the time of injury in analyzing the compensability of the claim. Collins v. Excel Specialty Products, 347 Ark. 811, 69 S.W.3d 14 (2002), Pifer v. Single Source Transportation, 347 Ark. 851, 69 S.W.3d 1 (2002), Wallace v. West Fraser South et al, 90 Ark. App. 38, 203 S.W.3d 646 (2005). In the case at bar, the claimant was not “on call” at the time of the
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Jones Truck Lines v. Pendergrass, 90 Ark. App. 402, 206 S.W.3d 272 (2005). Substantial evidence is evidence that a reasonable person might accept as adequate to support a conclusion. Id. In our review, we defer to the Commission in determining the weight of the evidence and the credibility of the witnesses; a decision of the Commission is reversed only if we are convinced that fair-minded persons with the same facts before them could not reach the conclusion reached by the Commission. Id. The issue is not whether we may have reached a different conclusion or whether the evidence might have supported a contrary finding. Id. When the Commission denies benefits upon finding that the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission’s decision displays a substantial basis for the denial of relief. Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000).
Farler contends on appeal, as he did at the hearing before the administrative law judge, that his claim was compensable as an exception to the going-and-coming rule. He directs our attention to such cases as Moncus, supra, and Hogan, supra. Citing Swearengin, supra, he asserts that his injury fell within the following exceptions to the going-and-coming rule: (1) the employee is injured while in close proximity to the employer’s premises, (2) the employer furnishes transportation to and from work, and (3) the employee is a traveling salesman.
Farler asserts that he was injured in close proximity to the water treatment plant, that his employer furnished his transportation to and from work, and that he had to travel in order to complete the duties of his employment. He argues that although he did not work on Monday, the day before the wreck, he was on call Monday evening and would have been expected to go out had he gotten a call. He points out that he was compensated with two hours of overtime pay for being on call that day. He argues that, even though he had not reported to the plant and was not actually traveling to one of the wells, he was clearly within the scope of his employment when the wreck occurred. He asserts that although his duties were normally confined to the water treatment plant, he often traveled outside the plant in order to carry out his employment duties in the city-provided vehicle. Thus, he concludes that his claim falls within exceptions to the going-and-coming rule.
We need not address Farler’s argument that, because his vehicular accident occurred within close proximity to the water treatment plant, the injury he suffered was compensable. The Commission correctly noted that the premises exception, which previously allowed compensation for an employee injured in close proximity to the employer’s premises, has been eliminated. See Linton, supra; Hightower v. Newark Pub. Sch. Sys., 57 Ark. App. 159, 164, 943 S.W.2d 608, 610 (1997). See also Srebalus v. Rose Care, Inc., 69 Ark. App. 142, 149, 10 S.W.3d 112, 116 (2000) (holding as a matter of law that under Hightower, supra, the employee’s injury, which occurred in the employer’s parking lot while the employee was on her way to work, was not compensable under our workers’ compensation law). Act 796 of 1993 and Ark. Code Ann. § 11 — 9— 102 redefined “compensable injury” to exclude an injury that was inflicted upon the employee “at a time when employment services were not being performed,” clearly eliminating the premises exception to the going-and-coming rule. Hightower, supra.
We agree with Farler that the critical inquiry in this case is whether he was performing employment services when he was involved in the vehicular accident, but we are not persuaded that his injury was compensable under our workers’ compensation law. There was testimony before the Commission to support its findings that Farler was not “on call” at the time of the accident, that he was not performing his duties of checking wells or responding to customers, and that he was merely driving to the water plant, which was his duty station, to begin the day’s work. We therefore hold that substantial evidence supports the Commission’s finding that Farler failed to prove the compensability of his claim either as the performance of employment services or as an exception to the going-and-coming rule.
Because the Commission’s opinion displays a substantial basis for the denial of this claim, its decision is affirmed.
Affirmed.
Neal and Baker, JJ., agree.
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Larry D. Vaught, Judge.
Margie Lineberry appeals from a jury verdict finding that she violated two restrictive cov enants contained in her residential subdivision’s bill of assurance. She also appeals the trial court’s award of $22,989.70 in attorneys’ fees and $382.75 in costs to appellee Riley Farm Property Owners Association. We affirm.
In April 2004, Lineberry purchased property in the Riley Farm subdivision in Fort Smith, Sebastian County, Arkansas. Prior to Lineberry moving into the subdivision, the developer of Riley Farm filed a bill of assurance with the office of the recorder of Sebastian County. The bill of assurance contained a number of restrictive covenants, two of which are relevant to the instant case. The first covenant prohibited any resident of Riley Farm from keeping “cattle, swine, poultry, fowl, wild animals[,] or exotic animals in the Addition.” The second required that “[p]lans for all fencing, whether on lot lines or surrounding patios, pools, barns[,] or other areas of the lot must be submitted to, and approved by, the Architectural Control Committee prior to the construction thereof.” This covenant further provided that if the Committee did not approve or disapprove a fence plan within fourteen days of its submission, the plan was deemed approved, and the Association’s resolution of the dispute “shall be binding” unless its resolution was arbitrary and capricious.
Shortly after Lineberry moved into the subdivision, members of the Association discovered that she kept a bobcat at her residence in the subdivision. On May 27, 2004, the Association sent Lineberry a certified letter informing her that keeping a bobcat at her residence violated the restrictive covenant’s prohibition on wild or exotic animals and that she needed to remove it. Lineberry never retrieved the letter from the post office.
On May 21, 2004, Lineberry faxed a letter and a drawing to Lucy Wilkes, office manager for the Association, requesting approval of a plan to erect a fence around her home. After receiving the fax, Wilkes placed a stamp on Lineberry’s letter that read “APPROVED,” with two blank lines underneath the word. The blank lines were provided for the approving signatures of two Commission members, which were required for fence construction in the subdivision. In response to the request, on June 1, 2004, Patrick Mickle, the Commission’s chairman, made notations on the drawing submitted by Lineberry highlighting aspects of her fence construction plan that did not comply with the Riley Farm covenants. Lineberry’s faxed notice never received the requisite signatures.
Onjune 3, 2004, Wilkes spoke with Lineberry by telephone and informed her that her fence application had not been approved and that Association members wanted her to remove the bobcat from the subdivision. The following day, Wilkes and Lineberry met in person to discuss the fence and the bobcat. During this meeting, Wilkes retrieved a copy of the May 27, 2004, certified letter the Association sent Lineberry, read it to her, and encouraged her to pick up the copy waiting for her at the post office. Lineberry never picked up the letter, continued to house the bobcat, and began building her fence.
On June 15, 2004, Roy Vanderpool, a member of the Committee, visited Lineberry’s home and told her that the fence she was building violated the subdivision’s restrictive covenants. Lineberry responded that she believed her construction plan had been approved. Vanderpool then contacted Wilkes to clarify the situation. Wilkes confirmed that Lineberry’s plan had not been approved. Lineberry indicated that she was willing to work with the Committee to bring her fence into compliance. Vanderpool and another member of the Committee, John Callaher, drafted an agreement stating that Lineberry could build a fence but that the fence had to comply with the “set-back line” provision of the covenants. Vanderpool and Callaher signed off on the agreement, and Lineberry committed to comply with the agreement, but instead, continued to build her fence according to her original construction plan.
On July 23, 2004, the Association filed a complaint in Sebastian County Circuit Court. The complaint sought to have Lineberry remove her bobcat from the subdivision and either remove the fence she had built or bring it into compliance with the covenant. The case was tried before a jury on December 20 and 21, 2004. The jury returned a unanimous verdict in favor of the Association on the question of whether Lineberry’s keeping of a bobcat in the subdivision violated the terms of the covenant. By a vote of eleven-to-one, the jury returned a verdict in favor of the Association on the question of whether Lineberry’s fence violated the covenants. The trial court entered judgment in favor of Riley Farm on January 3, 2005. On January 6, 2005, the Association filed a motion requesting that Lineberry pay the costs and attorneys’ fees it incurred litigating the case in accordance with the fee provision contained in its bill of assurance. On January 20, 2005, the trial court ordered Lineberry to pay $22,989.70 in attorneys’ fees and $382.75-in costs. It is from this judgment and order that Lineberry appeals.
However, after her appeal was lodged with our court, on February 18, 2005, Lineberry sold her home in Riley Farm. At this time Lineberry had not paid the judgment entered against her; therefore, the Association initiated a garnishment proceeding. On April 22, 2005, Lineberry paid the $23,372.45 in fees and costs that the court had ordered her to pay. On April 28, 2005, the Association filed a motion to dismiss Lineberry’s appeal claiming that because Lineberry no longer lived in Riley Farm and had voluntarily paid the judgment against her, the issue on appeal was moot. On May 25, 2005, in an 8-4 decision, our court voted to deny the Association’s motion to dismiss the appeal. We are mindful of this decision and reach the same conclusion.
If an appellant voluntarily pays a judgment, the appeal from that judgment would be moot, but if the payment is involuntary, an appeal would not be precluded. DeHaven v. T&D Dev. Inc., 50 Ark. App. 193, 901 S.W.2d 30 (1995). We are satisfied that once the writ of garnishment was filed, Lineberry did not “voluntarily” pay the attorneys’ fees. Further, because Lineberry’s economic interests were impaired, she has standing to pursue the appeal. Forrest Constr., Inc. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001).
Turning to the merits of appeal, we consider Lineberry’s argument that the trial court erred by refusing to give jury instructions that she had proposed, which set out a test for determining whether an animal should be considered wild. The proffered instructions stated:
An individual animal may be domesticated even where the species of animal is commonly wild. The test to determine whether an individual animal of a species is domesticated is whether:
1) The individual animal has become personal property, with someone who claims title and full ownership rights.
2) The owner or keeper has exercised such training and control over the animal that it may be considered tame.
An individual animal may be domesticated even where the species of animal is commonly wild. A wild animal is one of an untamed disposition; living in a state of nature.
A domesticated animal is one which is tamed and is habituated to live in or about the habitations of men, or such as to contribute to the support of a family.
Lineberry argued below, as she does on appeal, that the jury should have been instructed that animals normally living in the wild could be domesticated and wildness should be determined on an individual basis. Lineberry also contends that when the trial court denied the Association’s partial-summary-judgment motion, wherein it sought a ruling that a bobcat is a wild animal, the court obligated itself to her individual wildness theory ■— and the jury instructions she had proffered — because the ruling was in effect a rule of law.
At the outset, we note that the trial court’s denial of the Association’s summary-judgment motion is not the same as a ruling on the wildness issue. In its consideration of the Association’s motion, the trial court made no findings of fact or conclusions of law. The order simply stated that a genuine issue as to a material fact exists. The trial court could, therefore, consider any proposed instructions on the issue. The trial court was presented with two proposed jury instructions regarding the definition of wild and domestic animals ■ — ■ the one outlined above, and an instruction offered by the Association that was based on the Restatement (Second) of Torts § 506 (1977) that read:
Ladies and gentlemen, you are instructed that a wild animal is an animal that is not by custom devoted to the service of mankind at the time and the place in which it is kept. A domestic animal is an animal that is by custom devoted to the service of mankind at the time and in the place in which it is kept.
As a matter of law, litigants are entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support it. Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). However, a trial court’s refusal to give a proffered instruction will not be reversed unless there was an abuse of discretion. Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000).
Here, the restatement-based instruction given by the court is supported in the law and the evidence presented at trial. See Cavaliere v. Skelton, 73 Ark. App. 188, 40 S.W.3d 844 (2001) (holding that a couple keeping Bengal tigers at their residence violated a restrictive covenant that only allowed the keeping of household pets). The Association’s expert, Dr. Gwen Reeder (a Fort Smith veterinarian), testified that a bobcat is a wild animal — even if raised in captivity. She further noted that the United States Department of Agriculture, the Arkansas Game and Fish Commission, the American Veterinary Association, dictionaries, and legal scholars all define a bobcat as a wild animal. There was no evidence contradicting Dr. Reeder’s assessment. Because Lineberry failed to prove that her instruction was supported by the law or evidence presented at trial, it cannot be said that the trial court abused its discretion in its failure to give the instruction.
Next, Lineberry argues that there was insufficient evidence for the jury to find that the Commission disapproved her request to erect a fence around the front of her home. However, this argument is not preserved for review because Lineberry failed to move for a directed verdict on this issue at the close of all evidence. Ark. R. Civ. P. 50(e). Injury trials, if a party fails to move for a directed verdict at the conclusion of all the evidence because of insufficiency of the evidence, that party waives any question pertaining to the sufficiency of the evidence to support the jury verdict. Id. Here, not only did Lineberry fail to move for a directed verdict, she affirmatively stated that she believed that “there was enough of a factual dispute for the fence issue to get to the jury.”
Finally, Lineberry argues that the trial court erred in its award of attorneys’ fees and costs to the Association as the prevailing party in this matter. An award of attorneys’ fees will not be set aside absent an abuse of discretion by the trial court. Ouachita Trek & Dev. Co. v. Rowe, 341 Ark. 456, 17 S.W.3d 491 (2000). When reviewing a trial court’s decision to award fees, due regard shall be given to the trial court’s intimate acquaintance with the record and the quality of service rendered. Id.
In its order, the trial court noted that it had considered the fee-award guidance enunciated in Chrisco v. Sun Industries, 304 Ark. 227, 800 S.W.2d 717 (1990), and had based its decision on the factors outlined in the case, which include the experience and ability of the attorney, the time and labor required to properly perform the legal service, the novelty and difficulty of the issue involved, the time involved in the case and the obtained result, the customary fee charged in the locality for similar services, and the time limitation imposed by the client or the circumstances. After considering the so-called “Chrisco factors,” the trial court awarded a total sum of $22,989.70 in attorneys’ fees. The court went on to note that, although the Association asked for costs in the amount of $6,195.16, only $382.75 worth were authorized by Rule 54 of the Arkansas Rules of Civil Procedure — a $100 filing fee, a $50 service fee, $72.75 for subpoena service witness fee and mileage, and $60 in witness fees for two other witnesses.
Here, based on the trial court’s specific reference to the Chrisco opinion and its consideration of the guiding factors cited in the case, its reliance on Ark. Rule Civ. P. 54 as the basis for its costs award, and the high degree of deference we afford the trial court in the determination of reasonable attorneys’ fees, we find no abuse of discretion. We are further satisfied that this case does not present a scenario of the trial court abdicating its responsibility and mechanically awarding fees to the prevailing party.
Affirmed.
Hart and Roaf, JJ., agree.
The Restatement (Second) of Torts § 506 (1977) defines a wild animal as follows:
(1) A wild animal as the term is used in this Restatement is an animal that is not by custom to the service of mankind at the time and in the place in which it is kept.
(2) A domestic animal as that term is used in this Restatement is an animal that is by custom devoted to the service of mankind at the time and in the place in which it is kept. | [
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David M. Glover, Judge.
Appellant, Cynthia (Payne) Taylor, and appellee, Regan Payne, were divorced by decree entered on February 23,1989. Appellant was awarded custody of the parties’ minor child, Derek, whose date of birth was March 5, 1987. Appellee was ordered to pay $300 a month in child support. In February 2004, Derek began living with appellee. On August 18, 2004, appellee filed, inter alia, a motion for change of custody. Hearings were held on October 5, 2004, and April 13, 2005. The trial court concluded that appellant was estopped from collecting child support from appellee beginning with the date that Derek started living with appellee until he turned eighteen on March 5, 2005. For her sole point of appeal appellant contends that the trial court erred by applying the doctrine of equitable estoppel to the child-support arrearages. Finding no error, we affirm.
A trial court’s ruling on child-support issues is reviewed de novo by this court, and the trial court’s findings are not disturbed unless they are clearly against the preponderance of the evidence. Chitwood v. Chitwood, 92 Ark. App. 129, 211 S.W.3d 547 (2005). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. We give due deference to the superior position of the trial court to view and judge the credibility of the witnesses. Id.
Once a child-support payment falls due, it becomes vested and a debt due the payee. Id. However, enforcement of child-support judgments is treated the same as enforcement of other judgments, and a child-support judgment is subject to the equitable defenses that apply to all other judgments. Id. If the obligor presents to the court or administrative authority a basis for an equitable-estoppel defense, there may be circumstances under which the court or administrative authority will decline to permit enforcement of the child-support judgment. Id.
Here, in February 2004, the parties’ son, Derek, ran away from appellant’s home. She reported him missing, and the Cabot Police Department eventually picked him up. When the police contacted appellant to pick Derek up, however, by her own admission she did not do so. Shortly thereafter, Derek began living with appellee. On August 18, 2004, appellee filed a motion for change of custody, among other requested relief that is not pertinent to this appeal. On that same date, the trial court, in pertinent part, entered an ex parte order noticing the parties for a hearing on October 5, 2004, to address custody, child support, and related issues.
A brief hearing was held on October 5, 2004. During that hearing the trial court acknowledged that there was not enough time to decide the major issues but that he was trying to do what he could within the time frame with which they had to work. The parties stipulated that Derek had lived continuously with appellee from about February 24, 2004. The trial court implemented a “status quo” order for the child to remain with appellee until another hearing could be held on the change of custody issue. In addition, the court concluded that the doctrine of equitable estoppel was applicable to the situation with respect to appellee’s child-support obligations to appellant. The order from this hearing was entered on October 13, 2004.
On April 13, 2005, a hearing was held on appellee’s motion for change of custody and for child support. By the time of this hearing, Derek had turned eighteen. It was agreed and the court stated that a “narrow window” of time was involved concerning child support: “We’re talking about from February 24, 2004, until the child reached the age of 18. That’s the window we’re talking about.” By order entered April 25, 2005, the trial court concluded that appellant was obligated to pay child support for the period February 24, 2004 to March 5, 2005, and that the amount of support she owed for that period was $6,540. The order specifically denied appellant’s request to assess child support from August 18, 2004, when the motion for change of custody was filed.
Appellant appeals from the October 13, 2004 and April 25, 2005 orders. She essentially argues that the “record in the instant case is void of any action by [her] that would have led Mr. Payne to believe that support payments were no longer expected or required; but instead, Mr. Payne knew full well his obligation to seek a change of custody and support if circumstances warranted” and “[b]ecause none of the elements of equitable estoppel are present in the instant case, . . . the trial court was erroneous in its application.”
The elements of equitable estoppel are (1) the party to be estopped must know the facts; (2) the party must intend that its conduct shall be acted on or must so act that the party asserting estoppel had a right to believe the other party so intended; (3) the party asserting estoppel must be ignorant of the facts; and (4) the party asserting estoppel must rely on the other party’s conduct to his detriment. Chitwood, supra.
(1)the party to be estopped must know the facts
There is really no question that appellant, as the party to be estopped, “knew the facts.” She filed the missing-person report with the Cabot police, yet when they found her son and called her to come retrieve him, she did not do so. Appellee testified that he and the police spoke with appellant on the speaker phone; that she said she would get Derek “x-number” of days after appellee took him to a friend’s house; that she never went to get Derek; and that appellee picked Derek up after five days and “that’s when he came to live with me.” Appellant knew that Derek was living with appellee. Appellant also knew that she had been awarded custody of Derek; that Derek was an unemancipated minor; that appellee would pick him up if she did not do so; that appellee provided support for Derek during the period in question; and that appellant was providing no support to appellee for Derek during that time frame. We hold that this first element of estoppel was satisfied.
(2)the party must intend that its conduct shall be acted on or must so act that the party asserting estoppel had a right to believe the other party so intended
This element was satisfied because appellant, by her conduct, failed to retrieve Derek, and she clearly knew that appellee would pick Derek up and care for him, which appellee in fact did.
(3)the party asserting estoppel must be ignorant of the facts
Here, the party asserting estoppel is appellee, and under this element he must be ignorant of the facts. We hold that he was. Appellee did not know when, or if, appellant would retrieve Derek from his home; in the past Derek had been sent to live with appellee only to return to appellant a short time later; and appellant provided no support to appellee for Derek during the period that Derek lived with appellee. In addition, appellee stated that he did not have the money to get an attorney to petition to change custody. In short, it was impossible for appellee to know if appellant was going to come and retrieve Derek after a short stay as she had done in the past, and it was an expensive undertaking to file a motion for change of custody only to have Derek return to appellant after a short stay.
(4) the party asserting estoppel must rely on the other party’s conduct to his detriment
The fourth and final element was satisfied by the fact that appellee reacted to appellant’s essential abandonment of Derek after he was located by the Cabot police, and appellee stepped in to provide room and board and other support directly to Derek, with no support from appellant.
Affirmed.
Bird and Crabtree, JJ., agree. | [
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Andree Layton Roaf, Judge.
Appellant Cynthia Hardy appeals the decision of the Union County Circuit Court dismissing her declaratory action against appellees Miears and United Services Automobile Association (USAA). Hardy raises two points on appeal: (1) that the trial court erred in dismissing her action because a justiciable controversy does exist and (2) that Arkansas case law allows third-party standing in a declaratory judgment suit in the context of an insurance dispute. We find no error and affirm.
On November 23, 2003, while negligently operating an automobile, appellee Chloe Miears struck and killed Catrice Johnson, Hardy’s disabled minor daughter. Hardy’s minor son witnessed the death of his sister and as a consequence suffered substantial mental and emotional difficulties.
Miears had an insurance policy with appellee USAA; the policy limits were $500,000 per claim and $1,000,000 per accident. Hardy, as special administratrix, settled a wrongful-death claim against Miears and USAA on behalf of her daughter’s estate and the statutory beneficiaries for $500,000. This claim did not resolve the issue of any separate claim that Hardy’s minor son could possibly bring.
Hardy subsequently brought a Petition for Declaratory Judgment on the issue of whether her son had a separate and independent tort claim so as to trigger the additional $500,000 of coverage. USAA filed a Motion to Dismiss, asserting that this issue was not proper for a declaratory judgment suit and that Hardy did not have standing to bring such an action. The trial court granted the motion to dismiss, finding that there was no justiciable controversy between Hardy and USAA because Hardy has no legal interest in the relationship between Miears and USAA.
When reviewing questions of law, the appellate courts employ a de novo standard of review. Arkansas Dep’t of Human Servs. v. Welhorn, 66 Ark. App. 122, 987 S.W.2d 768 (1999). In reviewing the trial court’s decision on a motion to dismiss pursuant to Ark. R. Civ. P. 12(b)(6), this court treats the facts alleged in the complaint as true and views those facts in a light most favorable to the complaining party. Martin v. Equitable Life Assurance Soc’y of the U.S., 344 Ark. 177, 40 S.W.3d 733 (2001).
The Declaratory Judgment Act, Ark. Code Ann. § 16 — 111— 101 et. seq. (1997) is remedial, and its purpose is to afford relief from uncertainty and insecurity by declaring “rights, status, and other legal relationships whether or not further relief is or could be claimed.” Ark. Code Ann. §§ 16-111-102 and 103. The act is to be liberally construed and administered. Ark Code Ann. § 16-111-102(c). In addition, when declaratory reliefis sought, “all persons shall be made parties who have or claim any interest that would be affected by the declaration.” Ark. Code Ann. § 16-lll-106(a).
A declaratory judgment proceeding is intended to supplement rather than supersede ordinary causes of action, and is not a proper means of trying a case. Martin, supra. A declaratory judgment action does not substitute for an ordinary cause of action, but rather is dependent on and unavailable in the absence of a justi-ciable controversy. Id. Declaratory judgment suits are typically used to determine the obligations of the insurer under the insurance policy. Id.
Hardy’s first point on appeal is simply that her request for declaratory relief was proper in this case. USAA argues that seeking a declaration of whether Hardy’s son has an independent tort claim against Miears is not an appropriate use of declaratory judgment relief because the relationship between USAA and Miears has no bearing on the existence or nonexistence of a tort claim. We agree.
Declaratory relief may be maintained when its purpose of liquidating uncertainties and interpretations that might result in future litigation is served. Traveler’s Indem. Co. v. Olive’s Sporting Goods, Inc., 297 Ark. 516, 764 S.W.2d 596 (1989). The requisite precedent facts that must be established before declaratory relief can be obtained include the following: (1) there must be a justiciable controversy (a controversy in which a claim or right is asserted against one who has an interest in contesting it); (2) the controversy must be between parties with adverse interests; (3) the party seeking declaratory relief must have a legally protectable interest in the controversy; and (4) the issue must be ripe for judicial determination. Id. (Citations omitted.) In essence, before the trial court can use its discretion in favor of a declaratory judgment, the court must conclude that the judgment will termi nate the uncertainty or controversy giving rise to the proceeding and that the judgment will be useful in stabilizing legal relations. Equity Gen. Agents, Inc. v. O’Neal, 15 Ark. App. 302, 692 S.W.2d 789 (1985). Moreover, the court may not deny a declaration merely because another remedy is available or because of the pendency of another suit in which the rights of the parties would not necessarily be determined. Id.
In this case, Hardy’s petition for declaratory judgment presents no justiciable controversy. Declaratory judgment relief is not appropriate simply to determine whether a cause of action exists. See, e.g., Bankers & Shippers Ins. Co. of N.Y. v. Kildow, 9 Ark. App. 86, 654 S.W.2d 600 (1983) (stating that the Declaratory Judgment Act was not designed to force the parties to have a “dress rehearsal” of important issues to be tried in the subsequent tort suit).
It is true, as USAA states, that Arkansas does not recognize the tort claim of negligent infliction of emotional distress, see Mechanics Lumber Co. v. Smith, 296 Ark. 285, 752 S.W.2d 763 (1988); however, Hardy framed her complaint in terms of a claim for either the tort of outrage or intentional infliction of emotional distress. Still, whether a cause of action exists is an important issue that can only be resolved if Hardy actually files suit. Either Hardy’s son has a recognized cause of action or he does not, and the resolution of this matter does not depend upon whether Miears’s insurance policy with USAA will cover any subsequent judgments in Hardy’s son’s favor.
Hardy’s son has only a potential claim against Miears; he does not have a judgment that might be subject to collection from the insurance proceeds. We find that dismissal of Hardy’s declaratory action is proper because there is no justiciable issue. As such, we decline to address Hardy’s second contention that she had standing.
Affirmed.
Hart and Vaught, JJ., agree.
The filings and briefi indicate that appellee’s last name is spelled “Miers”; however, in his brief, appellees’ counsel asserts that the proper spelling is “Miears.” We will refer to appellee as “Miears.” | [
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John B. Robbins, Judge.
This tort litigation springs from a post-divorce dispute between appellant Charles Burkett and his former wife, appellee Martha Burkett, over Martha’s right to be on the premises of the former marital residence. Charles brings this appeal from a judgment of the Pulaski County Circuit Court, following a bench trial, awarding Martha compensatory damages of $21,600 and punitive damages of $10,000 for the torts of outrage, malicious prosecution, and abuse of process. Charles raises two points: that the trial court should have dismissed Martha’s complaint pursuant to Ark. R. Civ. P. 12(b)(6) because she failed to state facts upon which relief could be granted, and that the trial court’s award of damages was clearly against the preponderance of the evidence. We affirm.
The parties were divorced after more than thirty years of marriage by a decree entered on February 20, 2002. Among other things, the decree provided that Charles was to have sole possession of the marital house until November 2002, at which time the house was to be listed for sale.
On September 19, 2002, Charles signed an affidavit for a warrant for Martha’s arrest, alleging that he had been informed by neighbors that Martha attempted to enter the residence on September 18, 2002, without his permission. The affidavit also stated that Charles did not currently reside in the home. Martha was charged with criminal trespass.
On October 3, 2002, the divorce court entered an order from a hearing held on August 29, 2002, providing that the parties were to list the former marital residence for sale as of September 30, 2002, earlier than originally provided in the decree. The order also provided that Charles was to deliver certain personal property awarded to Martha, with the transfer to take place at the residence on September 7, 2002.
On December 4, 2002, the criminal-trespass charges were dismissed in the District Court of Jacksonville, Arkansas. The records concerning the charges were later expunged and sealed. After the dismissal of the charges, Martha filed the present suit on July 17, 2003, asserting causes of action for abuse of process, malicious prosecution, and outrage or the intentional infliction of emotional distress. The complaint asserted that Charles, in seeking the arrest warrant, withheld material information from the police and the prosecutor in his affidavit and that the criminal charges were designed to harass her in the divorce action, in retaliation for the divorce court awarding her a part of Charles’s retirement and disability benefits, and was done without probable cause. Charles answered, admitting that he signed the affidavit leading to Martha’s arrest but denying the remaining allegations of the complaint. He also filed a motion to dismiss the complaint for failure to state facts upon which relief could be granted. After a hearing on the motion in which Charles argued that Martha failed to allege facts showing that she had the right to be on the premises, the trial court denied the motion.
The case was tried to the court without a jury. Martha testified that the divorce decree did not prohibit her from going on the property, adding that Judge Gray told her that she could inspect the home prior to sale. She admitted that, accompanied by a paralegal from her divorce attorney’s office, she went to the property but did not attempt to enter the house and did not damage anything. She said that she understood that the divorce decree provided that Charles was to have sole possession of the house and that the October 22 order did not change that but merely shortened the time of sole possession. She stated that, although she never discussed the matter with Charles, he had consistently maintained that she had no right to be on the property on September 18.
On cross-examination, Martha said that she did not know if Judge Gray’s statement that she had the right to inspect the property was contained in any order. She also relied on language from the October 2002 order providing that Charles would be responsible for any damage to the house to support her theory that she had the right to be on the property, asking how she would know if there was damage to the house unless she could inspect. Martha said that, pursuant to the October 2002 order, she was allowed to go onto the property to retrieve her personal property but stated that she did not go into the house. She also stated that there was no other language in any order authorizing her to go onto the property after the September 7 date but said that she did not realize that she needed Charles’s permission.
Martha further testified that, on September 23, 2002, while at work, she was served with a warrant for her arrest and that she went home to gather her documents before going to the police station. She stated that Charles knew where she lived but sent the police to her work to embarrass her in front of her employer and coworkers and that she was, in fact, embarrassed, scared, angry, and humiliated and had no idea why she was being arrested for criminal trespass. Martha hired an attorney to represent her on the criminal charges at a cost of $400; the charges were ultimately dismissed. She hired another attorney to have the charges expunged at a cost of $1,200.
Martha stated that Charles’s affidavit did not advise the prosecutor that the parties were in the midst of divorce or that she had the right to go on the property to inspect it prior to sale. She described Charles as being upset with Judge Gray’s decisions regarding the division of his retirement and disability benefits in the divorce case. She assumed that Charles swore out the warrant in order to embarrass her but added that Charles never told her that he filed charges to harass her or to “get her” in connection with the divorce.
Martha said that, after the charges were filed, she started having problems with her mental and physical conditions in that she was restless, nervous, scared, and had lost sleep over the incident. She stated that she sought professional help with emotional problems and with lack of sleep and was prescribed medication, which did not completely help. She was also prescribed other medications that helped until she made the decision to stop taking them. She said that she had been losing sleep since Charles filed the divorce action. She also said that it was hard to separate the stress in general caused by her relationship with Charles from that resulting from the criminal charges. Other than sleep problems, she said she suffered no other health problems stemming from her arrest. She also stated that she feared that her nursing license was in jeopardy. Martha admitted testifying in her deposition that the emotional distress caused by her arrest was “very embarrassing but not extreme” but disagreed with the accuracy of the statement.
Charles was called as a hostile witness by Martha and denied that there was any animosity toward Judge Gray as a result of her rulings but said that he had appealed the rulings. He said that he spoke with Martha only one time during the divorce, with other communications going through the parties’ attorneys. Charles stated that he advised Martha’s attorney to call so an appointment could be made if Martha wanted to inspect the property. He also said that he had two or three conversations with neighbors concerning Martha’s being on the property, with one neighbor indicating that she attempted to enter the house. He stated that he was concerned because Martha might damage the house prior to sale and that one neighbor said Martha was destroying property. Charles said that he did not file a contempt motion in the divorce court because he did not see the need to do so. He described Martha’s presence at the marital residence as a form of harassment toward him, adding that he had her arrested because she should not have been there. Charles conceded that there was no order from Judge Gray indicating that Martha could not be on the property other than the decree’s provision that he had sole possession of the house. On cross-examination, he denied that Judge Gray gave Martha the right to inspect the property prior to the sale.
Although he could not recall an exact date, Charles said that he had personal knowledge that Martha had entered the house because she would not have otherwise known about the replacement of the stove and refrigerator. He said that this was true even though Martha testified that she was told about the appliances. He also gave contradictory testimony concerning whether he had given permission for Martha and a realtor to inspect the house, stating that he had given such permission before stating that he did not give permission. He testified that he instructed the realtor not to let Martha in the house without his permission.
Charles denied feeling anger or hostility towards Martha, expressing concern that she was going to break into the house because she had had Charles’s son do it before. He also stated his belief that she was guilty of criminal activity by trespassing onto the property. He denied that there was any other way to keep Martha from entering the property, adding that, even though he discussed Martha’s entry on the property with his attorney, the thought of a motion for clarification in the divorce court never crossed his mind.
According to Charles, he did not know where Martha resided in September 2002. He said that he told the prosecutor or sheriffs office that his only method of contacting Martha was through her place of employment. In support of his statement in his affidavit that he informed Martha that she was not to be at the residence, Charles said that he told Martha and her attorney in the courthouse hallway that Martha should not be at the house without his permission. He also denied testifying falsely at the criminal trial. Charles stated that he believed that the divorce decree gave him sole possession of the residence and that this meant Martha had no right to enter the property. He showed the prosecutor the divorce decree, which led to the issuance of the arrest warrant. According to Charles, there was not an order from the divorce court providing for joint possession of the property after its listing. He said that he did not mention the August 2002 hearing that resulted in modification of the divorce decree to the prosecutor because he did not see the need to do so.
Charles said that he did not want Martha on the property because he had it ready for sale and did not want her to interfere with the steps he had taken. He took other steps to protect the property, such as changing the locks, installing deadbolts, and using an alarm system. He said that he did not have his son arrested when he broke into the house to assist Martha.
C.J. Jacobs, a paralegal for Martha’s divorce attorney, said that she accompanied Martha to the marital residence in September 2002. She stated that she was not aware of anything that would have prevented Martha from going on the property for an inspection but denied attempting to enter the home. Jacobs was present when Martha met with her attorney to discuss the criminal charges and described Martha’s mental condition as being “completely distraught,” adding that Martha was shaking so severely that she could hardly speak. She stated that she spoke with Martha daily and that each conversation involved how traumatized she was by this incident. She also said that Martha’s mood did not appear to change.
At the close of Martha’s case, Charles made a motion to dismiss for failure to present a prima facie case and for insufficient evidence to support a verdict in Martha’s favor. After arguments of counsel, the trial court denied the motion.
The trial court ruled from the bench, finding that there was nothing in the divorce court’s orders prohibiting Martha from going onto the property. The trial court noted that the proper course of action would have been for Charles to file a motion in the divorce court. The court found that Charles acted to harass, embarrass, and humiliate Martha and that she suffered emotional distress in that she was scared, angry, and humiliated. The court noted the failure of the neighbors, upon whom Charles based his affidavit, to testify. The trial court then awarded Martha $1,600 for her attorney’s fees in the criminal case, $20,000 in compensatory damages for emotional distress, and $10,000 in punitive damages. Judgment was entered accordingly, and this appeal timely followed.
For reversal, Charles argues that the trial court erred in not dismissing Martha’s complaint for failing to state facts upon which relief could be granted and that the trial court’s decision to award damages is against the preponderance of the evidence. Charles did not make a motion for additional findings of fact. He also does not challenge the trial court’s findings as to the amount of damages. Therefore, because we hold that Martha’s cause of action for malicious prosecution is affirmable, we will only address that action inasmuch as an affirmance of any one of the causes of action involved in this proceeding will result in an affirmance of the entire judgment. See Costner v. Adams, 82 Ark. App. 148, 121 S.W.3d 164 (2003).
In his first point, Charles argues that the trial court erred in not dismissing Martha’s complaint pursuant to Ark. R. Civ. P. 12(b)(6). In reviewing the trial court’s decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Arkansas Dep’t of Envtl. Quality v. Brighton Corp., 352 Ark. 396, 102 S.W.3d 458 (2003); Clayborn v. Bankers Standard Ins. Co., 348 Ark. 557, 75 S.W.3d 174 (2002); Martin v. Equitable Life Assurance Soc’y, 344 Ark. 177, 40 S.W.3d 733 (2001). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Clay-born, supra. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.; Ark. R. Civ. P. 8(a). We look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Arkansas Dep’t of Envtl. Quality v. Brighton Corp., supra. In the present case, Charles argues that Martha failed to plead facts as to at least one element of each cause of action.
Charles argues that Martha failed to set forth facts showing that he lacked probable cause to institute the criminal charges. In her complaint, Martha alleged'that Charles caused her “to be arrested on false criminal charges knowing the charges were false. . . .” In the context of malicious prosecution, probable cause means such a state of facts or credible information which would induce an ordinarily cautious person to believe that the accused is guilty of the crime for which he is charged. Harold McLaughlin Reliable Truck Brokers, Inc. v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996); Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). If Charles knew the charges to be false, then he did not have probable cause to seek Martha’s arrest. This is sufficient to plead the lack of probable cause. Foster v. Pitts, 63 Ark. 387, 38 S.W. 1114 (1897); Delgado v. Rivera, 57 P.2d 1141 (N.M. 1936). We affirm on Charles’s first point.
For his second point, Charles argues that the trial court’s decision to award Martha judgment is against the preponderance of the evidence. The standard that we apply when reviewing a judgment entered by a circuit court after a bench trial is well established. We do not reverse unless we determine that the circuit court erred as a matter of law or we decide that its findings are clearly against the preponderance of the evidence. Vereen v. Hargrove, 80 Ark. App. 385, 96 S.W.3d 762 (2003); Riffle v. United Gen. Title Ins. Co., 64 Ark. App. 185, 984 S.W.2d 47 (1998). Disputed facts and the determination of the credibility of witnesses are within the province of the circuit court, sitting as the trier of fact. Id. Charles argues that Martha failed to prove at least one element of each of her three causes of action.
In order to establish a claim for malicious prosecution, a plaintiff must prove the following five elements: (1) a proceeding instituted or continued by the defendant against the plaintiff; (2) termination of the proceeding in favor of the plaintiff; (3) absence of probable cause for the proceeding; (4) malice on the part of the defendant; and (5) damages. South Ark. Petrol. Co. v. Schiesser, 343 Ark. 492, 36 S.W.3d 317 (2001); McLaughlin v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996). Here, Charles challenges only Martha’s proof on the probable-cause element, arguing that she offered speculation only as to why he signed the affidavit. The trial court could consider all of the information available to Charles in deciding whether there was probable cause for initiation of the criminal charges. First Commercial Bank v. Kremer, 292 Ark. 82, 728 S.W.2d 172 (1987). The trial court indicated that it did not believe that the divorce decree gave Charles exclusive possession of the residence.
The trial court could have also considered Charles’s failure to seek clarification in the divorce court as evidence of the lack of probable cause in a fashion similar to a shopkeeper’s policy of automatically prosecuting suspected shoplifters without regard to their explanations. See Wal-Mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 681 S.W.2d 359 (1984); Wal-Mart Stores, Inc. v. Williams, 71 Ark. App. 211, 29 S.W.3d 754 (2000). Further, the trial court could find that Charles failed to make a full and fair disclosure of all the information concerning the divorce case and that this failure also showed a lack of probable cause. South Ark. Petrol. Co. v. Schiesser, supra. Here, Charles admitted that there was information he did not disclose to the prosecutor because he, Charles, did not think it relevant. That information, had it been disclosed, may have caused the prosecutor not to authorize the issuance of the arrest warrant. Because there was evidence from which the trial court could have concluded that probable cause for Martha’s arrest was lacking, we affirm on this point.
Affirmed.
Gladwin and Bird, JJ., agree.
The trial court offset a previous award of $500 to Charles, resulting in a net judgment of $31,100. The basis for this setoff is not explained. | [
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James R. Cooper, Judge.
The appellant in this workers’ compensation case sustained a compensable back injury in 1983. On March 7,1988, the appellant went horseback riding and, after dismounting, experienced pain which caused him to faint, fall, and injure his spine. The appellant sought benefits for the medical expenses resulting from his 1988 injury, contending that the 1988 incident was a continuation and recurrence of his 1983 injury. The Workers’ Compensation Commission found that the appellant’s horseback riding was an unreasonable activity constituting an independent intervening cause,, and concluded that the employer was therefore not liable for medical expenses resulting from the 1988 incident. In our opinion delivered December 26, 1990, we noted that the question before the Commission was whether the 1988 injury was triggered by activity on the part of the appellant which was unreasonable under the circumstances, and held that the Commission erred by failing to consider the appellant’s knowledge of his condition in determining whether his horseback riding was unreasonable under the circumstances. Lunsford v. Rich Mountain Electric Co-op, 33 Ark. App. 66, 800 S.W.2d 732 (1990). Noting that the Commission found that the appellant “believed he had cleared this activity with Dr. MacDade,” his physician, but failed to find whether the appellant’s horseback riding was unreasonable in light of his belief that the activity had been cleared with the doctor, we reversed and remanded for the latter finding to be made. Lunsford, 33 Ark. App. at 70. On remand, the Commission again denied and dismissed the appellant’s claim. From that decision, comes this appeal.
For reversal, the appellant contends that the Commission erred in failing to follow this Court’s instructions on remand, and that the Commission’s dismissal of the claim is not supported by substantial evidence. We agree with both points, and we reverse.
The appellant correctly asserts that the Commission failed to follow our instructions on remand. We observed in our prior opinion that the Commission found that the appellant believed his horseback riding activity had been cleared with Dr. MacDade, and remanded with specific instructions which directed the Commission to find whether the appellant’s activity was unreasonable in light of his belief that it had been cleared by his physician. The Commission did not comply with these instructions, but instead found that the appellant’s testimony lacked credibility and stated that it had not intended to find that the appellant believed that Dr. MacDade had cleared his horseback riding activity.
Regardless of what the Commission may have intended, the Commission found in its previous opinion that the appellant believed Dr. MacDade had cleared the activity. Having once so found, the Commission cannot now say that the appellant’s testimony was not sufficiently credible to permit such a finding, because the doctrine of res judicata, which is applicable to the decisions of the Commission, forbids the reopening of matters once judicially determined by competent authority. Tuberville v. International Paper Co., 18 Ark. App. 210, 711 S.W.2d 840 (1986). Moreover, matters decided on our prior appeal are the law of the case and govern our actions on the present appeal to the extent that we would be bound by them even if we were now inclined to say that we were wrong in those decisions. Ouachita Hospital v. Marshall, 2 Ark. App. 273, 621 S.W.2d 7 (1981). We are not so inclined, because the Commission plainly stated in its opinion that the appellant “believed that he had cleared this activity with Dr. MacDade.” A simple, straightforward statement of what happened, like the statement quoted above, is a finding of fact. See Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986). Our interpretation of the Commission’s language as a finding of fact was essential to our prior opinion in that our instruction on remand was premised on our conclusion that the Commission found that the appellant believed his doctor had cleared the activity. As such, the matter was decided, and therefore governs the actions of the Commission on remand and our actions on a second appeal. See Pickle v. Zunamon, 19 Ark. App. 40, 716 S.W.2d 770 (1986). By ignoring our instructions on remand and our decision in this matter, the Commission committed error.
We also find merit in the appellant’s argument that the Commission’s decision was not supported by substantial evidence. The Commission concluded in its opinion that “horseback riding by a man in the Claimant’s condition was unreasonable, even assuming arguendo that he did believe that his doctor had cleared the activity.” The Commission’s conclusion was based on the appellant’s testimony that he suffered episodes of intense pain from time to time which could cause him to lose consciousness; given evidence to this effect, the Commission found that it was unreasonable for the appellant to ride horses even if he believed that his doctor had authorized that activity. This holding was premised on the Commission’s conclusion that horseback riding was dangerous per se to the appellant and caused an increased potential for the episodes of intense pain described above. However, we find no evidence in the record to show that horseback riding would exacerbate the appellant’s back injury. Although we defer to the Commission’s experience and knowledge when employed to make a finding based on the evidence before it, the Commission’s expertise is not evidence and cannot be substituted for evidence. See Perry v. Mar-Bax Shirt, 16 Ark. App. 133, 698 S.W.2d 302 (1985). Under these circumstances, where the appellant believed that his doctor had approved the activity, where medical evidence of the effect of the activity on the appellant’s condition is absent from the record, and where the appellant was not riding a horse when the incident occurred, we hold that the Commission’s finding that the appellant engaged in an unreasonable activity is not supported by substantial evidence. We reverse and remand for the Commission to award benefits.
Reversed and remanded.
Cracraft, C.J., and Jennings, J., dissent. | [
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Melvin Mayfield, Judge.
This is an appeal by Centennial Valley Ranch Management, Inc., (CVR) from an order granting the motion to dismiss filed by the appellees Agri-Tech Limited Partnership and Agri-Tech Ltd. The appellant is an Ohio corporation. The partnership appellee was organized under the laws of Arizona; the other appellee is an Arizona corporation.
The initial complaint in this matter was filed by CVR in Yell County Circuit Court in 1985. It was dismissed by CVR in 1988. Suit was then filed in federal district court and dismissed by the court for lack of jurisdiction in May of 1989.
On June 15, 1989, CVR filed a complaint in Yell County Circuit Court alleging that on July 24, 1984, CVR had entered into a cattle management agreement with Agri-Tech Ltd., acting on its own behalf and as general partner of the limited partnership, under which CVR agreed to undertake a cattle management operation on lands located in Yell County, Arkansas. It was alleged that the cattle were shipped to Arkansas from Montana by a Canadian corporation; that beginning in October 1984, Agri-Tech made monthly payments to CVR, under the agreement, for the care and feeding of the cattle; that on November 7, 1985, Agri-Tech canceled the agreement due to economic conditions and asked for the return of the cattle; and that Agri-Tech refused to pay the balance due (approximately $31,500.00) on the last monthly management fee.
Count I of the complaint alleged breach of contract and asked for judgment in the amount of $3,367,000.00. Count II of the complaint allged fraudulent misrepresentation and asked for punitive damages. Count III of the complaint alleged the defendants were estopped from denying the agreement or their liability to pay and asked for judgment for all sums expended. Count IV of the complaint alleged that 890 cows and 839 calves were removed from CVR’s possession in violation of CVR’s first lien on the cattle. The complaint prayed for joint and several judgment against both appellees.
On July 19, 1989, the appellees, Agri-Tech Ltd. and Agri-Tech Limited Partnership, filed a motion to dismiss on the basis of Ark. R. Civ. P. 12(b)(1-6): for lack of subject matter and personal jurisdiction; improper venue; insufficient process; insufficiency of service of process; and failure to state a claim on which relief may be granted. Attached to the brief in support of the motion was the federal court order dismissing appellant’s suit in federal court along with numerous pleadings, documents, and evidence considered in federal court.
On August 16,1989, CVR filed an amended complaint, and on August 18,1989, the appellees filed another motion to dismiss in which they reasserted and realleged all matters set out in their July 1989 motion to dismiss.
After the case had been removed to federal court and remanded, the Yell County Circuit Court held a hearing on the appellees’ motion to dismiss and on August 13,1990, the motion was granted. The order simply stated that the motion “is well founded and should be sustained.”
On appeal, CVR argues that the trial court granted the motion to dismiss because the Wingo Act, Ark. Stat. Ann. §§ 64-1201-02 (Repl. 1980), and the statutes that replaced that Act, Ark. Code Ann. §§ 4-27-1501-02 (Repl. 1991), prohibit a foreign corporation transacting business in Arkansas from enforcing its contracts in an Arkansas court unless the corporation is registered to do business in Arkansas. Appellant contends the court erred because (1) the contract in this case was executed and put into force in Arizona, and (2) the transaction was a component part of interstate commerce. Under either situation, according to the appellant, the prohibitions of the Wingo Act and the statutes that replaced it do not apply. Moreover, the appellant contends that it alleged causes of action which were not based on contract, and those causes of action are not affected by the Wingo Act or the statutes that replaced it.
As pointed out by the appellees, the Arkansas Business Corporation Act was enacted by Act 958 of 1987. See Ark. Code Ann. §4-27-101 (Repl. 1991). The comment to that section states that the Act was based primarily upon the Revised Model Business Corporation Act, which was a product of a committee of the American Bar Association. See Ark. Code Ann. Commentaries 415 (1987). The 1987 Act provides that, “A foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.” Ark. Code Ann. § 4-27-1502(A) (Repl. 1991). The parties in this case seem to assume that this section of the 1987 Act is applicable to this case filed in June of 1989. That certainly appears to be a correct assumption. A law review article on that subject states:
Unlike the provisions applicable to domestic corporations, those sections of the 1987 ABCA applicable to foreign corporations were not covered by a grandfather clause. The new statute stated that any foreign corporation authorized to transact business in Arkansas at midnight, December 31,1987, was subject to the new statute, and the old provisions were specifically repealed.
Mary Elizabeth Matthews, Corporate Statutes — Which One Applies?, 13 U. Ark. Little Rock L.J. 69, 76 (1990).
The above law review article also explains that the 1987 Act made the penalty less severe for doing business in Arkansas without authority. Id. at 76. Under the old law (Wingo Act) the non-qualifying foreign corporation was not permitted to enforce any contract made in Arkansas. Id. at 77. But the law review article says that, “The commentary to the Revised Model Business Corporation Act on which the section is based makes clear the drafters intended a nonqualifying foreign corporation be able to enforce a contract simply by qualifying.” Id. at 77.
Although it is agreed that the appellant corporation in the present case has not qualified to do business in Arkansas, that does not completely solve the issues presented. Ark. Code Ann. § 4-27-1501 (Repl. 1991) provides in subsection A that a foreign corporation may not transact business in this state until it obtains a certificate of authority, but in subsection B the statute lists some activities that do not constitute doing business within the meaning of subsection A, and subsection C states that the activities listed in B are not exhaustive. Under B(ll) the activity listed which does not constitute transacting business in this state is, “Transacting business in interstate commerce.” This is heavily relied upon by the appellant in support of its position that the trial court was wrong in dismissing appellant’s complaint.
Before continuing with a discussion of the interstate commerce issue, we look at the procedural manner in which this case was decided by the trial court. The appellees’ motion to dismiss alleged the appellant’s complaint should be dismissed under the provisions of Ark. R. Civ. P. 12(b), and was based upon all six of the defenses listed in Rule 12(b). As we have already stated, there were numerous matters attached to the motion ánd brief filed by the appellees. Included with those matters was the transcript of a portion of the evidence considered in federal court. Subsection (c) of civil procedure Rule 12 provides that if, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment. Attached to appellant’s response to the motion to dismiss were, among other matters, two affidavits. Although the trial court’s order did not so state, it seems clear that the motion to dismiss was treated and disposed of as a motion for summary judgment. See Godwin v. Churchman, 305 Ark. 520, 810 S.W.2d 34 (1991). Thus, we examine the record to determine if there is any genuine issue of fact. Ark. R. Civ. P. 56(c).
The contract sued upon is in the record and we have already briefly described it in our summary of the allegations of the appellant’s complaint. It specifically provides that it shall be governed by the law of Arizona, and for our decision in this case, we will assume that it was made in Arizona as the appellant contends.
There are other matters about which the record shows there is no genuine issue of fact. We know that the appellant (CVR) was established in 1979. Clyde Lawson, who was president of the corporation when he made an affidavit on April 11, 1989, began working for CVR in 1979. In 1984 a Canadian corporation made an agreement with Agri-Tech Ltd. to sell it 1600 artifically impregnated cows. Agri-Tech then made an agreement, as general partner in Agri-Tech Limited Partnership, for CVR to feed and care for these cattle. According to his affidavit, Clyde Lawson and his wife later purchased a ranch in Arkansas and leased the ranch to CVR for it to use to maintain the 1600 head of cattle which CVR had agreed with Agri-Tech to feed and care for; Lawson and his wife also purchased CVR; this purchase covered only the maintenance agreement with Agri-Tech; since July of 1985, CVR has operated in no state other than Arkansas.
The appellant cites Goode v. Universal Plastics, Inc., 247 Ark. 442, 445 S.W.2d 893 (1969); Hough v. Continental Leasing Corp., 275 Ark. 340, 630 S.W.2d 19 (1982); and Bassett v. Hobart Corporation, 292 Ark. 592, 732 S.W.2d 133 (1987), for the proposition that corporations who do business in Arkansas, but fail to qualify for that purpose in this state, may nevertheless enforce contracts in this state if those contracts were made in another state. These cases do not help appellant because they were controlled by the Wingo Act, Ark. Stat. Ann. § 64-1201 -02. That section provided that “any foreign corporation which shall fail or refuse to file its articles of incorporation or certificate as aforesaid, eannot make any contract m the state which can be enforced by it either in law or in equity.” As we have pointed out, the 1987 Act simply states that “a foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.” The prohibition is not the same under the “new” Act as it was under the “old” Wingo Act.
Appellant also cites Uncle Ben’s, Inc. v. Crowell, 482 F. Supp. 1149 (E.D. Ark. 1980), for the proposition that a contract may be enforced by nonqualifying foreign corporations if it is only a component part of interstate commerce and not wholly in interstate commerce. That case also said that a nonqualifying corporation “although engaging in an essentially interstate activity, can conduct sufficient activities which are local in nature so that it should properly be subject to state regulation.” Id. at 1155. See also Independence County v. Tad Screen Advertising Co., 199 Ark. 205, 133 S.W.2d 1 (1939) (interstate shipment of film held incidental to otherwise intrastate activity).
Again, however, the point in the present case is that Act 958 of 1987, known as the Arkansas Business Corporation Act, was in effect when this present suit was filed on June 15,1989. A provision of that Act, Ark. Code Ann. § 4-27-1502(A) (Repl. 1991), provides that a nonqualifying foreign corporation transacting business in this state may not maintain a proceeding in any court in this state until it obtains a certificate of authority to do business here. Although Ark. Code Ann. § 4-27-1501(B) (11) (Repl. 1991), provides that transacting business in interstate commerce does not constitute transacting business in Arkansas for the purpose of having to obtain a certificate of authority from this state, we think the material facts revealed by the record, as to which there is no genuine issue, show that when the appellant filed this case it was a foreign corporation transacting business in this state without a certificate of authority.
This suit was filed in June of 1989. According to the April 1989 affidavit of appellant’s president, Clyde Lawson, the appellant was an Arizona corporation; was owned by Lawson and his wife; and had not operated in any state except Arkansas since July of 1985. The only business in which it was engaged when this suit was filed was feeding and caring for cattle shipped to Arkansas, under a contract made in Arizona, on land it had leased in Arkansas for that purpose.
We think it was necessary for the appellant to obtain a certificate of authority to transact business in this state before it could maintain this suit in the courts of this state. This includes all causes of action alleged in appellant’s complaint. Therefore, we affirm the trial court’s order of dismissal.
Affirmed.
Cracraft, C.J., and Cooper, J., agree. | [
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Melvin Mayfield, Judge.
Ilee Willmon has appealed a decision of the Workers’ Compensation Commission which dismissed her claim because “the claimant has failed to meet her burden of proof.”
Appellant’s first argument is that the Commission did not base its decision on a de novo review of the entire record and the case should be remanded. The Commission, after reciting • that it had conducted a de novo review of the entire record and finding that the appellant had failed to meet her burden of proof, affirmed and adopted the opinion of the law judge. In White v. Air Systems, Inc., 33 Ark. App. 56, 800 S.W.2d 726 (1990), we explained the Commission’s duty in reviewing a decision of an administrative law judge.
The Arkansas Workers’ Compensation Commission is not an appellate court. Shippers Transport, supra. [Shippers Transport v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979)] It is, instead, the factfinder, and as such its duty and statutory obligation is to make specific findings of fact, on de novo review based on the record as a whole, and to decide the issues before it by determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence. See Shippers Transport, supra: Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989); Jones v. Tyson Foods, Inc., 26 Ark. App. 51, 759 S.W.2d 578 (1988); Ark. Code Ann. § 11-9-705(a)(3) (1987).
33 Ark. App. 59. And in Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107(1986), we held that the Commission must make sufficient factual findings to justify the decision made so that the appellate court can conduct a meaningful review of the commission’s decision. However, we held in Second Injury Fund v. Robison, 22 Ark. App. 157, 737 S.W.2d 162 (1987), that a Commission opinion may contain findings of fact sufficient to satisfy the Wright standard when it adopts an opinion of the law judge which contains adequate findings. 22 Ark. App. at 166. By affirming and adopting the decision of the law judge in the instant case, the Commission supplied us with adequate findings of fact so that we can conduct a meaningful review.
Appellant also argues that the Commission’s decision is not supported by substantial evidence. On reviewing a decision of the Workers’ Compensation Commission, we must view the evidence in the light most favorable to the findings of the Commission and give the testimony its strongest probative force in favor of the action of the Commission. McCollum v. Rogers, 238 Ark. 499, 382 S.W.2d 892 (1964). Our standard of review on appeal is whether the decision of the Commission is supported by substantial evidence. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Phillips v. State, 271 Ark. 96, 607 S.W.2d 664 (1980). We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983). These rules insulate the Commission from judicial review and properly so, as it is a specialist in this area and we are not. But a total insulation would obviously render our function in these cases meaningless. Boyd v. General Industries, 22 Ark. App. 103, 733 S.W.2d 750 (1987).
Appellant testified that on March 16, 1990, while she was employed by appellee canning company, her apron got caught in a conveyor belt and as the apron was released she was flipped over onto a concrete floor. She was taken by ambulance to the Crawford County Memorial Hospital where she stayed until March 29. She has not returned to work since her injury. She testified she is unable to work because her foot turns inward, swells, and is painful. She said Dr. R.W. Ross, her treating physician, had not released her to return to work, but she had not seen him for several months. She explained that when she returned to see him in April she discovered appellee had controverted her claim and would no longer pay the medical bills and she was unable to afford to pay the bills herself.
Dr. William L. Griggs, a neurologist, in a report dated March 24, 1990, diagnosed appellant as suffering from:
1. Conversion Reaction. Inversion Right Foot. Nondermatomal Numbness Involving Trunk, Left Hand, Right Leg.
2. No Neurological Disease Found.
In the hospital discharge summary dated March 29, 1990, Dr. Ross stated:
As each day progressed, there were fewer and fewer findings but more complaints on the part of the patient. On about the third hospital day the patient announced to this attending physician that something was severely wrong with her back and right leg, that the right leg had shorten itself, was rotating the foot inward and that there was no way that she could control this. At this point, she was seen in consultation with Dr. Albert MacDade, a local neurosurgeon, Dr. Claude Martimbeau, a local orthopaedist, and Dr. William Griggs, a local neurologist. Tho[r]ough neurologic, neurosurgerical [sic] and orthopaedic investigation and studies] were done and there were no forthcoming positive findings. All modalities of investigation indicated that indeed there was no neurologic involvement, no fractures, no.dislocations and no other abnormalities. Dr. Griggs’ very thorough neurologic and musculoskeletal evaluation in fact showed that the patient could straight [en] her leg and did not have abnormal function to that right lower extremity. It is therefore our conclusion that she is suffering a conversion hysteria and really believes that she cannot straighten the leg.
Anitra Fay, Ph. D., a psychologist, reported that appellant was “very defensive” in responding to the MMPI and the profile validity was reduced. Nevertheless, she said the appellant produced an abnormal profile, tending to be hypochondriacal in outlook, and she (Fay) recommended psychiatric consultation.
On April 11, Dr. Griggs reported that appellant’s neurological exam continued to show multiple functional findings with no organic findings, and that she “has a conversion reaction.” And on May 18, 1990, the doctor reported motor nerve conduction velocity of the right lower extremity was normal as was the EMG. He concluded there had been no change from the April study.
In his opinion, which by adoption became the opinion of the Commission, the law judge stated:
Drs. Ross, Griggs and Fay all shared the same opinion that the claimant in all probability was suffering from a conversion reaction. Conversion reaction is defined in Taber’s Cyclopedic Medical Dictionary as follows:
A conversion type of hysterical neurosis in which there is loss of or alteration in physical functioning suggesting a physical disorder but instead representing the expression of a psychological conflict or need.
The Arkansas appellate courts have recognized conversion reaction as a compensable condition. In Boyd v. General Industries, 22 Ark. App. 103, 733 S.W.2d 750 (1987), we reversed the Commission’s refusal to award benefits for a psychological reaction to a compensable injury. We stated:
The threshold issue is whether the effects of this kind of mental disorder or psychoneurosis, if causally related to an on-the-job injury, are compensable. In Wilson & Co. v. Christman, 244 Ark. 132, 141, 424 S.W.2d 863, 869 (1968), the supreme court approved the following statement from Larson:
. . . [W]hen there has been a physical accident or trauma, and claimant’s disability is increased or prolonged by traumatic neurosis, conversion hysteria or hysterical paralysis, it is now uniformly held that the full disability including the effects of the neurosis is compensable. Dozens of cases, involving almost every conceivable kind of neurotic, psychotic, depressive, or hysterical symptom or personality disorder have accepted this rule.
Clearly the disabling effects of this type of disorder are compensable if the requirement of a causal connection is met. Although arguments can be made that this type of mental disorder ought not to be compensable, see e.g., the discussion in Deziel v. Difco Laboratories, Inc., 403 Mich. 1, 268 N.W.2d 1 (1978), neither we nor the Commission are free to disregard the supreme court’s holding in Christman.
22 Ark. App. at 108-109.
The law judge’s opinion in the instant case stated that “the two questions that must be addressed” were (1) is the conversion reaction causally connected to the claimant’s injury of March 16, 1990, and (2) if there is a causal connection, is the condition disabling.
We note that the opinion assumes that the appellant suffered from a “conversion reaction.” Certainly, the evidence supports that assumption. But the law judge’s opinion goes on to say that even if there was such a causal connection “there is absolutely no medical proof that this condition is disabling.”
This statement completely overlooks the March 24, 1990, report of Dr. Griggs which stated that appellant had an “inversion” of her right foot. The law judge’s statement also overlooks the March 29,1990, discharge summary of Dr. Ross which stated it was his and Dr. Grigg’s conclusion that appellant “is suffering a conversion hysteria and really believes that she cannot straighten the leg.” And the law judge’s statement also overlooks the April 16, 1990, “progress notes” of Dr. Ross which state he had observed that appellant “carries her right foot internally rotated and gives to it as if there was a difference in the length of her legs.” The “progress notes” also state, “I do not think it advisable that she try to work at the present time because of the way she walks and carriers her foot, she would probably stumble and hurt herself.”
The law judge’s opinion concluded that the appellant failed to prove by a preponderance of evidence that “the conversion disorder as diagnosed by the treating physicians was and is causally related to her compensable injury of March 16, 1990,” or that “the conversion disorder is disabling.” Guided by our standard of review as set out above, we do not think the law judge’s opinion, adopted by the Commission, is supported by substantial evidence. Therefore, we reverse the Commission’s decision and remand this case for a determination of the workers’ compensation benefits to which appellant is entitled as a result of the conversion reaction she suffered as a result of the compensa-ble injury, sustained on March 16, 1990.
Reversed and remanded.
Cooper, and Danielson, JJ., agree. | [
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James R. Cooper, Judge.
The issue in this criminal case is whether the affidavit supporting a search warrant complied with the “totality of the circumstances” test of Illinois v. Gates, 462 U.S. 213 (1983). A jury found the appellant guilty of possession of a controlled substance with intent to deliver, a Class B felony, and possession of drug paraphernalia, a Class C felony. See Ark. Code Ann. §§ 5-64-401 and 5-64-403. He was sentenced to 23 years in the Arkansas Department of Correction and a fine of $ 15,000 on the drug delivery charge, and was sentenced to a five-year concurrent term and a $5,000 fine on the paraphernalia possession charge. For reversal, he contends the trial court erred in denying his motion to suppress evidence seized pursuant to a search warrant. He argues that the supporting affidavit was based on information given by informants and showed neither their knowledge concerning the alleged criminal activity or contraband nor their reliability. He claims the court further erred in failing to suppress his custodial statement taken after the illegal search because it was “fruit of the poisonous tree” and was, therefore, inadmissible. We affirm.
The affidavit supporting the search warrant stated that information was obtained from two confidential informants and an identified informant, Roy McDonald. The first confidential informant identified the appellant “as bringing quantities of methamphetamine to Rogers and delivering it to a Claude Wayne Bickford, a/k/a Jake.” The second confidential informant notified the affiant “that she had spoken with Claude Bickford by telephone at the residence of 702 North 22nd Place.” Bickford had stated “that a shipment of methamphetamine would be arriving at that residence after dark this date, 5-8/9-89.” Roy McDonald was said by the affiant to have been arrested for possession of methamphetamine with intent to deliver. This informant stated that the appellant “would be coming from Springfield, Missouri, tonight (5-8-89) to meet with Jake Bick-ford at 702 North 22nd Place to deliver a quantity of methamphetamine.” The affiant further stated that his own surveillance of that residence revealed a blue Pontiac Firebird, with a Missouri license; that upon leaving that residence at 12:30 a.m., it proceeded to the Hiway Host Inn; and that a subsequent check of the records at the Hiway Host Inn revealed that the appellant had just registered and was staying in room #138.
To establish the reliability of the informants, the affiant stated that the first confidential informant and Mr. McDonald had previously implicated another person who was subsequently arrested for having sold methamphetamine, and that the second confidential informant identified “Jake” Bickford as being a “major methamphetamine supplier” whose supplier was in Missouri. He also stated that the information was obtained independently from each informant, thereby corroborating each other’s information; that both McDonald and the second confidential informant were admitted methamphetamine users; and that the information was corroborated by intelligence reports maintained by the Rogers Police Department. The magistrate found that there was reasonable cause to believe the search would discover the appellant, the controlled substances, and the paraphernalia in question.
The appellant contends that the affidavit inadequately shows the knowledge of each informant, due to their failure to name the appellant or the failure to provide the basis for their knowledge. Nevertheless, in applying the Gates test, reviewing the affidavit as a whole, the showing of knowledge is sufficient. The first confidential informant and Roy McDonald do identify the appellant as bringing methamphetamine to Jake Bickford; both McDonald and the second confidential informant identified the residence where the contraband was to be delivered, specified the delivery date, and that the contraband was coming from Missouri; and the second confidential informant stated that she had spoken with Bickford on the telephone that day about the delivery. The information given by the informants was substantially the same though independently given to the affiant, thereby corroborating each other’s information.
Rather than relying solely on these tips, the affiant, through independent police work, confirmed the information. See, Rainwater v. State, 302 Ark. 492, 791 S.W.2d 688 (1990). Surveillance of the residence revealed a vehicle with a Missouri license plate, and a subsequent check of the records at the Hiway Host Inn revealed that the person who drove the car and checked into the motel was the appellant. This affidavit is not unlike the affidavits in Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987), and Brannon v. State, 26 Ark. App. 149, 761 S.W.2d 947 (1988), in which the information of two confidential informants corroborated each other and was verified by police investigation. Both were found sufficient to comply with the Gates “totality of the circumstances” test.
The reliability of these informants was also established by the fact that though obtained independently, the information of each was corroborated by the other two. The affiant stated that the first confidential informant and McDonald previously identified another as selling methamphetamine who was subsequently arrested. The appellant contends this is meritless because the affidavit does not state that that individual was convicted; however, none of the cases he cites states that there must be a conviction, rather than a mere arrest or suspicion, to prove the previous reliability of a confidential informant. In Jackson v. State, 291 Ark. 98, 722 S.W.2d 831 (1987), the affidavit said simply “a reliable informant advised affiant . . .”, which was found to be sufficient to establish reliability. Furthermore, in Watson, supra, it is stated that the informants’ admission of a crime, possibly exposing themselves to prosecution, increased the likelihood of reliability. Here, both McDonald and the second confidential informant admitted to being users of methamphetamine which were statements against their interest and could cause them to be under suspicion.
In support of his argument, the appellant relies on Aquilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969) as well as several cases which were decided before our Supreme Court adopted the “totality of the circumstances” test of Illinois v. Gates, supra, in Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983). The Gates decision provided a more flexible test to replace the two-pronged test of Aquilar and Spinelli. A “practical, common sense decision” should be based on all the circumstances, including the veracity and basis for knowledge of persons supplying information. Watson v. State, supra.
He also relies on Ark. R. Crim. P. 13.1 (b) which codified the stringent Aquilar-Spinelli test; however, that rule was amended by per curiam February 5,1990, effective March 1,1990, so as to reflect language consistent with Gates. Added to the rule is the following:
An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place. Failure of the affidavit or testimony to establish the veracity or basis of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.
See Rainwater v. State, supra.
It is the duty of the reviewing court to insure that the magistrate had a substantial basis for concluding that probable cause existed to issue the warrant. Brannon v. State, supra. There is no substantive distinction between the terms “reasonable cause” and “probable cause.” Id; see also, Rule 13.1(d). Probable cause for a search warrant does not require an affiant to assert facts which establish conclusively or beyond a reasonable doubt that a violation of . the law exists at the place to be searched. Vanderkamp v. State, 19 Ark. App. 361, 721 S.W.2d 680 (1986).
We hold that the corroboration of the three independent informants coupled with the confirmation of their information by police investigative work provided reasonable cause to believe that the appellant was involved in criminal activity and that the contraband would be found in his motel room and/or his automobile.
Having found a substantial basis for the magistrate to conclude there was probable cause to issue the search warrant, the appellant’s next argument, i.e., that his custodial statement taken seven hours after the illegal search was inadmissible because it was “fruit of the poisonous tree,” is answered. Because the search was not illegal, and the admissibility of the statement was not challenged on any other ground, the trial judge correctly admitted it into evidence.
Affirmed. ■
Danielson and Mayfield, JJ.,. agree. | [
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Melvin Mayfield, Judge.
The issue in this case is the amount the appellee should be required to pay for the support of his minor daughter.
The appellant is the mother of the child who was 13 years old at the time of the hearing. The appellant contends that the chancellor clearly abused his discretion in failing to apply the rebuttable presumption that the amount of child support con tained in the family support chart is the correct amount. The brief makes it clear that the appellant is referring to the chart found in the Arkansas Supreme Court’s per curiam of February 5, 1990. See In Re: Guidelines for Child Support Enforcement, 301 Ark. 627, 784 S.W.2d 589 (1990).
The appellee father was directed by a court order entered on December 19, 1979, to pay $50.00 per month for support of the child whose support is the subject of this appeal. The appellant started the instant case by filing a petition on July 23, 1990, asking that the child support be increased. The first thing to be noticed is the provision of the Supreme Court’s per curiam which states:
In determining requested modifications of child support orders entered prior to the effective date hereof, the trial court should consider the totality of the present circumstances of the parties and avoid modifications that would work undue hardship on the parties or any persons presently dependent thereon.
301 Ark. at 630. It is clear that the above provision applies to the instant case.
The record shows that the appellee was found to be the father of the child here involved after a hearing on a complaint filed in December of 1979. The complaint stated that the child was born out of wedlock, and the appellee was ordered to pay $50.00 per month support. According to the mother, this amount was paid fairly regularly from 1979 up to the date the petition to modify was filed in July of 1990. That petition asked for an arrearage of $90.00; however, the court determined from the evidence that the proper arrearage was $910.00 and ordered that amount to be paid at the rate of $ 15.00 per month. This is in addition to the increase from $50.00 per month to $30.00 per week ordered by the court, plus the provision that the appellee father should pay one-half of the child’s “medical, dental, orthodontic, optometric, and prescription expenses.”
At the hearing on November 14, 1990, the appellee introduced a pay stub into evidence showing that his pay for a week in September of 1990 was $273.00. This included two hours overtime, and the stub showed deductions for taxes and social security in the amount of $62.81, leaving his net pay at $210.63 for the week. He testified that he was married and living with his wife and three children, two of which were his. He said his monthly expenses were $1,461.83. Included in this amount was $511.83 for mortgage payments on the house in which appellee and his wife lived. The house, however, belonged to the wife. She had a gross income of about $14,500.00 per year.
The appellant testified that her child is older now and needs more money for support. The appellant makes $186.00 per week gross. Deductions are $64.41 leaving a net weekly income of $121.59. She listed monthly living expenses of $395.83, and said she is in bankruptcy.
The chancellor found that appellee had a weekly income in the amount of $210.00, and the chart called for $51.00 per week child support. He stated the statutes and supreme court rules required support in the amount set out in the chart unless there was some reason to alter that amount. He stated the chart would quadruple appellee’s payments and, considering his expenses, it would be devastating to increase by four times the amount of his support payments. Therefore, the chancellor said he was going to increase the weekly payment to $30.00 instead of $51.00. The court’s written order also contained essentially the same findings.
We affirm the trial court. Its order followed the requirements and applied the rules set out in the supreme court’s per curiam of February 5, 1990. That per curiam states, as to modification of orders entered prior to the per curiam, that the court “should consider the totality of the present circumstances of the parties and avoid modifications that would work undue hardship on the parties or any persons presently dependent thereon.” 301 Ark. at 630.
The appellant’s net income of $121.00 per week (about $484.00 per month) is a little more than her monthly expenses of $395.83. She will get an additional $120.00 per month from the increased child support payments, plus $15.00 per month until the $910.00 arrearage is paid. Appellee’s expenses of $1,461.83, when reduced by his $511.83 house mortgage (for which he is liable but which makes payments on the house owned by his wife), leaves his monthly expenses at $950.00. Added to that will be an increase in support payment to appellant. His net income is only $840.00 per month and this will not meet his expenses. His wife will obviously have to pay part of these expenses to help support him, their two children, and the one child of her own.
In Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992), the Arkansas Supreme Court said:
After figuring the child support amount under the chart, a chancellor has the discretion to adjust the amount if equitable and if written findings are made to that effect. In making the decision, the chancellor can consider a parent’s ability to pay. This would necessarily include a consideration of other children the parent is legally obligated to support.
308 Ark. at 284.
Under the law and the evidence, we cannot say the findings of the chancellor are clearly erroneous.
Affirmed.
Rogers, J., dissents. | [
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James R. Cooper, Judge.
The appellant in this workers’ compensation case was employed by the appellee on December 18, 1989, when she was injured. The appellant filed a claim for benefits which, after a hearing, was denied on a finding that the appellant did not sustain an injury arising out of and in the course of her employment. From that decision, comes this appeal. We affirm.
The facts of this case can be simply stated. The appellant had been employed by the appellee for approximately two years. In addition to her secretarial duties, the appellant ran errands in her personal vehicle at the direction of her employer. On December 18, 1989, the appellant was directed by the appellee to drop off some material at a CPA firm across town. After dropping off these materials, and while en route back to the appellee’s premises, the appellant stopped by a florist to pick up an order which she had placed for herself earlier by telephone. The florist shop was located on the direct route between the CPA’s office and the appellee’s place of business on Highway 165. In turning off Highway 165 to the florist, the appellant deviated a distance of 30 to 40 feet. The appellant slipped on some ice and fractured her left ankle while returning to her vehicle carrying a poinsettia.
For reversal, the appellant argued that the Commission erred in failing to apply the “dual purpose” trip doctrine; she contends that application of that doctrine would compel a conclusion that her injury arose out of and in the course of her employment.
The appellant correctly states that the dual purpose doctrine has often been applied in Arkansas. See, e.g., Martin v. Lavender Radio & Supply, 228 Ark. 85, 305 S.W.2d 845 (1957); Rankin v. Rankin Construction Co., 12 Ark. App. 1, 669 S.W.2d 911 (1984). In Rankin, supra, we stated that the dual purpose doctrine provides that an injury is within the course of employment if it is sustained during a trip which serves both a business and a personal purpose, if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had not coincided with the personal journey. Id. at 2-3, quoting 1 Larson, Workmen’s Compensation Law § 18.00 (1982). Likewise, we stated in Rankin that the “decisive test” in determining whether the risks of travel are also the risks of the employment is whether “it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to its perils.” Rankin, 12 Ark. App. at 3, quoting Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929).
The appellant contends that, because it was the employer’s errand at the CPA office that “sent her forth,” she was therefore, as a matter of law, acting within the course and scope of her employment at the time of her injury under the test enunciated in Marks’ Dependents, supra. We do not agree. The appellant’s argument overlooks the fact that the dual purpose doctrine is merely one exception to the “going and coming” rule, which ordinarily precludes recovery for an injury sustained while the employee is going to or returning from his place of employment. See generally Woodard v. White Spot Cafe, 30 Ark. App. 221, 785 S.W.2d 54 (1990). However, a determination that a trip falls within the “dual purpose” exception to the going and coming rule does not end the inquiry; instead, the dual purpose doctrine merely serves to label the overall trip as either business or personal; deviations from the main purpose require a separate inquiry. See 1 Larson, The Law of Workmen’s Compensation § 19.10 (1991).
In cases such as the case at bar, where the denial of relief is based on the claimant’s failure to prove entitlement by the preponderance of the evidence, the substantial evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Weller v. Darling Store Fixtures, 38 Ark. App. 95, 828 S.W.2d 858 (1992). Here, the Commission based its denial of relief on its finding that the appellant was engaged in a totally personal errand at the time she was injured. We think it significant that the Commission also stated that the risk of slipping on ice while stopped to engage in a personal errand was not a risk of the appellant’s employment. It has been stated that “if the risks of the deviation itself are operative in producing the accident, this in itself will weigh heavily on the side of non-compensability.” 1 Larson, supra, at § 19.61. Given that the appellant in the case at bar had completed her employer’s errand and was returning to work in her vehicle, we think that the Commission could properly find that slipping on ice was a risk of the deviation, rather than of the employment. In light of the Commission’s finding to that effect, we cannot say that its opinion does not provide a substantial basis for the denial of relief.
Affirmed.
Jennings and Mayfield, JJ., agree. | [
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John E. Jennings, Judge.
Appellants appeal from a judgment of the Mississippi County Circuit Court which dismissed their claim for breach of contract and awarded appellees, on their counterclaim, the return of their $10,000.00 earnest money deposit. Appellants contend that the circuit judge erred in finding that appellees’ ability to obtain financing to purchase appellants’ property was a condition precedent to the enforcement of their contract. We find no error and affirm.
Appellants own a 588-acre farm in Mississippi County. On June 14,1985, Hunter Williams, Jr., Alba Williams, and Hunter Williams, Sr. (now deceased), signed a contract to purchase appellants’ farm for $882,000.00. Specifically, the pre-printed contract provided:
Seller covenants and agrees to sell and convey Property, with all improvements thereon, or cause it to be conveyed, by good and sufficient warranty deed, to Purchaser, or to such person or persons as Purchaser may designate; Purchaser, however, shall not be released from any of Purchaser’s agreements and undertakings as set forth herein, unless otherwise stated; and Purchaser covenants and agrees to purchase and accept Property for the total price of ($882,000.00) Eight Hundred Eighty Two Thousand and no/100 — Dollars, upon terms as follows:
After this language, the following typed insertion was added by appellants’ real estate agent, Kemp Whisenhunt:
Buyers to pledge approximately 900 acres of land in Tallahatchie County in Mississippi together with lands herein described for loan to pay purchase price. 1985 crop rent of 1 /4 cotton and 1/3 other crops to be transferred to buyer. Closing on or before August 1, 1985.
The contract also provided that appellees were to obtain possession of the property on January 1, 1986.
Initially, appellees encountered some problems in obtaining financing for the property because the farm had been leased to a third party until December 1987. Appellees sought financing from a number of different lending institutions, without any success. Equitable Life Assurance Society was the only lender appellees found that was interested in making the loan. The loan was never made, however, because Equitable ran out of farm mortgage money before the loan could be finalized. On September 15, 1985, Hunter Williams, Sr., became ill, and he died on October 10,1985. Several months later, appellants sold the farm to their tenant, Koehler Blankenship, for $630,000.00. Appellants then sued appellees for breach of contract, seeking $252,000.00, which represented the difference between the $882,000.00 purchase price offered by appellees and the $630,000.00 paid by Mr. Blankenship. Appellees counterclaimed for the return of their earnest money deposit. The case was tried to the court sitting as the jury.
The court found that the agreement referred to the purchase price as $882,000.00, upon terms that appellees pledge approximately 900 acres of land in Mississippi, together with the subject lands, for a loan to pay the purchase price. The court also found that, before drafting the sale contract, appellants’ agent, Kemp Whisenhunt, was aware that appellees could not purchase the farm without first obtaining a loan. The court concluded that appellees’ ability to obtain a loan was a condition precedent to their performance of the contract and, since they used more than reasonable efforts to obtain a loan and were unable to do so, the contract terminated and was unenforceable.
Appellants argue on appeal that the trial court erred in holding that appellees’ ability to obtain a loan to purchase the farm was a condition precedent to their duty to purchase the farm. Appellants contend that the parties’ contract does not contain language which creates a condition precedent and does not allow for appellees to be released from the contract in the event they are unable to obtain a loan.
Whether a provision in a contract amounts to a condition precedent is generally dependent on what the parties intended, as adduced from the contract itself. McMinn v. Holley, 86 Idaho 186, 384 P.2d 229, 231 (1963). When the terms of a written contract are ambiguous and susceptible to more than one interpretation, extrinsic evidence is permitted to establish the intent of the parties and the meaning of the contract then becomes a question of fact. Floyd v. Otter Creek Homeowners Ass’n, 23 Ark. App. 31, 35, 742 S.W.2d 120, 122-23 (1988). See also Marlatt v. LaGrange, 145 Colo. 50, 52, 357 P.2d 927, 928 (1960); Hawkins & Chamberlain v. Mathews, 242 Ky. 732, 47 S.W.2d 547, 548 (Ct. App. 1932); and Lopez v. Broussard, 308 So.2d 837, 840-41 (La. Ct. App. 1975). Furthermore, evidence of a parol agreement that a written agreement is being delivered conditionally constitutes an exception to the parol evidence rule. Bradbury v. Giordano, 10 N.J. Super. 414, 76 A.2d 815, 817 (1950); see also VJK Prods, Inc. v. Friedman Meyer Prod., Inc., 565 F. Supp. 916, 919 (S.D. N.Y. 1983).
Appellee Hunter Williams, Jr., testified that appellants’ broker, Kemp Whisenhunt, knew that appellees did not have sufficient cash to pay for the farm unless they obtained a loan. Mr. Hunter testified that this fact was made perfectly clear to Mr. Whisenhunt. Additionally, on July 3,1985, Hunter Williams, Jr., wrote to appellant Edgar Stacy announcing appellees’ intent to rescind the contract for several reasons. One such reason provided:
There was a mutual mistake between your agent, Kemp Whisenhunt, and my family as to the market value of farm land that my family owns in Tallahassee County, Mississippi. Your agent and my family were of the opinion that the market value of this land was between $900.00 and $1,000.00 an acre. In actuality, the land only enjoys a present market value of $600.00 per acre. The basis of any offer to purchase your land was to finance the purchase by selling the Mississippi land. In fact, an exchange of property along with the cash difference between the market value of the properties was being negotiated to avoid any payment of capital gains taxes.
On July 16,1985, Joe Bell, attorney for appellants, responded to this letter, stating in part:
The offer is not conditioned on the Mississippi land having a value of $900 to $1,000 per acre. Instead, that land, along with the Stacy farm, was to be used as collateral for a loan to your family to purchase the Stacy farm. Your position on this issue is untenable, and any further delay on your part to immediately seek such a loan, and close the sale with the Stacys, will be treated as a breach of your agreement to pay the Stacys the full purchase price.
It can be inferred from Mr. Bell’s letter that appellants were aware that it would be necessary for appellees to obtain a loan in order to purchase the property. There is no testimony by appellants or their witnesses which disputes appellees’ contention that their success in obtaining a loan was a condition of the agreement.
When two provisions in a contract are contradictory, typewritten provisions prevail over printed ones. Leonard v. Merchants and Farmers Bank, 290 Ark. 571, 574, 720 S.W.2d 908, 910 (1986); McKinnon v. Southern Farm Bureau Casualty Ins. Co., 232 Ark. 282, 285-86, 335 S.W.2d 709, 711 (1960). The typed insertion contained in the parties’ agreement “buyers to pledge approximately 900 acres of land in Tallahatchie County in Mississippi together with lands herein described for loan to pay purchase price. . .,” clearly created an ambiguity in the contract, and the intent of the parties could not be discerned from the four corners of the agreement. The circuit court, therefore, could properly consider evidence of the parties’ intent in construing the language of the contract.
The findings of fact of a circuit court sitting as a jury will not be reversed on appeal unless clearly against a preponderance of the evidence, and in making that determination, we give due regard to the superior opportunity of the trial court to judge the credibility of the witnesses and the weight to be given their testimony. Bass v. Service Supply Co., 25 Ark. App. 273, 276, 757 S.W.2d 189, 190 (1988); Ark. R. Civ. P. 52(a). We cannot say that the trial court’s holding that appellees’ ability to obtain financing was a condition precedent to enforcement of the contract is clearly against the preponderance of the evidence.
Appellants point out that, at the time the contract was drafted, appellee Hunter Williams, Jr., was a newly-licensed first-year attorney and that, if appellees had intended to make their obtaining a loan a condition precedent to the contract, they could have clearly so provided. While this is true, it does not render the language in the agreement unambiguous. The fact that a clause fails to employ the usual words denoting a condition such as “subject to” or “if,” is not controlling in determining whether a condition precedent was created. Restatement (Second) of Contracts § 226, Comment a (1981). The contract was drafted by appellants’ broker, and therefore, if the language is unclear, it should be construed strictly against appellants. See Elcare, Inc. v. Gocio, 267 Ark. 605, 608-09, 593 S.W.2d 159, 161 (1980); Bradbury v. Giordano, 10 N.J. Super. 414, 418, 76 A.2d at 817; Hawkins & Chamberlain v. Mathews, 242 Ky. 732, 735, 47 S.W.2d at 548.
Furthermore, courts from other jurisdictions have construed similar language, equally unclear, to create conditions precedent. In Hawkins & Chamberlain v. Mathews, 242 Ky. 732, 733-34, 47 S.W.2d at 547, the following language was found to create a condition that had to be met before the contract could be enforced: “[A]t the agreed price of Nine Thousand ($9,000.) Dollars, to be paid as follows: At least $1500.00 plus an amount of not less than $6,000 obtained on loan in a building association secured by a first mortgage, to be paid in cash. . . .” In Bradbury v. Giordano, 10 N.J. Super. 414, 416, 76 A.2d at 816, the appellant, Mr. Giordano, agreed to sell the appellee property for $12,500.00. The appellee agreed to satisfy the purchase price in the following manner:
“On execution of this agreement for which this is also a receipt $1,000.00
On delivery of deed, cash $
By assuming the mortgage at present a lien on the premises, and paying the same according to the terms thereof $9,600.00
On Bond and Mortgage * * * $
The purchaser agrees to assume an F.H.A. mortgage now existing on these premises in the amount of $9600.00, and the purchaser agrees to apply and secure a secondary GI mortgage in the amount of $1,900. (Italics mine.) 1,900.00
12,500.00”
In addressing this language, the court stated:
The language we here deal with is the language of the defendants and should be construed strictly against them. It does not require a strict construction to reach the result that both vendor and vendee dealt with respect to an assumed condition to arise in the future and that the performance of the agreement by each of the parties was contingent and conditioned upon the contemplated event arising.
10 N.J. Super, at 418, 76 A.2d at 817. The court in Marlatt v. LaGrange, 145 Colo. 50, 52-53, 357 P.2d at 928, found the language “ ‘$2,000.00 in cash including the above deposit on or before ten days from date; Obtained maximum loan and balance to be carried on 2nd Deed of Trust by Seller. . .’ ” to be vague and indefinite and, therefore, held that the trial court could receive parol evidence to determine the parties’ intentions. And in Lopez v. Broussard, 308 So.2d at 839, the court found that a contract provision which stated “‘16.000-I.S.L.’ ” meant the remaining $16,000 purchase price was to be paid from the proceeds of a loan obtained from Iberia Savings & Loan Association and that the sale was conditioned on Ms. Broussard obtaining a loan. 308 So.2d at 839-41.
Appellants cite Christy v. Pilkington, 224 Ark. 407, 273 S.W.2d 533 (1954), and Ingham Lumber Co. v. Ingersoll, 93 Ark. 447, 125 S.W. 139 (1910), for the proposition that financial inability to pay does not discharge an unqualified contractual duty to perform a contract. In Christy v. Pilkington, the Christys executed a valid written contract by which they agreed to buy an apartment house from Mrs. Pilkington for $30,000.00. When the time came to pay, the Christys were unable to do so, and Mrs. Pilkington sued for specific performance. In affirming the chancery court’s decree in favor of Mrs. Pilkington, Justice George Rose Smith wrote:
Proof of this kind does not establish the type of impossibility that constitutes a defense. There is a familiar distinction between objective impossibility, which amounts to saying, “The thing cannot be done,” and subjective impossibility — “I cannot do it.” Rest., Contracts, § 455; Williston on Contracts, § 1932. The latter, which is well illustrated by a promisor’s financial inability to pay, does not discharge the contractual duty and is therefore not a bar to a decree for specific performance.
224 Ark. at 407, 273 S.W.2d at 533. In Christy, there was no evidence the duty to perform was conditional. In the case at bar, however, there is evidence from which the court could find that appellees’ duty to perform was conditioned on obtaining the necessary loan.
Likewise, in Ingham Lumber Co. v. Ingersoll, the appellant sought to be released from a contract because the appellant “could not get money into the country with which to pay for the work.” The supreme court responded:
But the written contract did not provide for a release of the defendant from liability upon such a contingency. The rights of the parties must be measured by the contract which they themselves made. A contract is not invalid, nor is the obligor therein in any manner discharged from its binding effect, because it turns out to be difficult or burdensome to perform. A valid contract cannot be abrogated or modified unless both parties assent thereto; and if one of the parties manifests in unequivocal language his intention not to perform the contract unless it is modified, he breaches the contract. He may not be compelled to perform the undertaking but he cannot, on account of the hardship of the undertaking, relieve himself from the liability incurred by the contract.
93 Ark. at 452, 125 S.W. at 142. The court, quoting from Johnson v. Bryant, 61 Ark. 312, 315, 32 S.W. 1081, 1089 (1895), went on to state: “Inconvenience or the cost of compliance, though they might make compliance a hardship, cannot excuse a party from the performance of an absolute and unqualified undertaking to do a thing that is possible and lawful.” Ingham Lumber Co. v. Ingersoll, 93 Ark. at 452, 125 S.W. at 142. The issue in the case at bar, however, is not impossibility; the issue is whether the appellees’ duty to perform was made conditional under the terms of the parties’ agreement.
Appellants further argue that appellees and their agents unreasonably delayed in attempting to obtain the necessary loan, and therefore, did not exercise good faith. See Betnar v. Rose, 259 Ark. 820, 826-27, 536 S.W.2d 719, 723 (1976), which held that, in the absence of specific provisions in a contract, the buyers have the duty to make reasonable efforts and to accept reasonable terms in procuring a loan. Here, the circuit judge found the contrary to be true. In fact, he held that appellees not only made reasonable efforts, but made extensive efforts, to obtain a loan within a reasonable time and further noted that they went beyond their obligation by pledging an additional 120 acres of land in attempting to obtain the loan.
The evidence demonstrated that the agreement was signed on June 14, 1985; however, appellees were not notified that the problem regarding the existing lease of the farm had been resolved until a month later. Burl Calhoon, appraiser for Equitable Farm Mortgage Department, testified that he could not have made the loan if there were any outstanding leases. Mr. Calhoon also testified that he told appellants’ agent, Kemp Whisenhunt, at a meeting on June 25, that he would need a legal description, because one was not attached to the contract .OnAugust5,1985, however, he still had not received the description from Mr. Whisenhunt, and he had to go to the office of appellees’ attorney in order to get it from the abstracts. He also testified that the appellees were prompt and cooperative in getting him everything he needed to process the loan.
Malcomb Greenway, appellee Hunter Williams, Jr.’s great uncle, acted as appellees’ agent in obtaining a loan. He testified that he had been arranging farm loans for over thirty-five years and that he contacted seven different lending institutions regarding making the loan. He stated that Equitable was the only lender who showed any interest.
Appellants also argue that appellees failed to use reasonable efforts by not following through on appellants’ offer to finance a portion of appellees’ purchase. The terms of this offer are very vague. Appellants introduced a letter into evidence, dated September 17, 1985, from their attorney, Joe Bell, to appellees’ attorney, Graham Sudbury, informing appellees that appellants were willing to finance a portion of the purchase price. No other details were given. The letter further provided:
This proposal needs to be acted on this week, as the Stacys will offer the land to other buyers, because of the Williams’ failure to close. If the Williams desire to pursue the matter further, they should get in touch before September 20, 1985, since the farm will be offered for sale next week.
Graham Sudbury testified that he had an earlier conversation with Joe Bell in September in which Bell stated that appellants would be willing to sell the property for $750,000.00, with a four-hour time limit. Sudbury testified that he interpreted this offer to mean that appellees had four hours to come up with $750,000.00, which he felt was ridiculous. Hunter Williams, Jr., testified that he first saw Bell’s letter on September 20th and by that time, his father, one of the buyers, was unconscious and, under the circumstances, he did not know what else he could do.
Whether the efforts of the appellees in the case at bar were reasonable was a question for the trier of fact. See Betnar v. Rose, 259 Ark. at 827, 536 S.W.2d at 723. Based on the evidence before the circuit judge, we cannot say his holding is clearly against the preponderance of the evidence.
Affirmed.
Rogers and Cooper, JJ., dissent. | [
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Robert H. Dudley, Justice.
Appellant Barney May and Midwest Steel, Inc. executed a promissory note in the amount of $400,000.00 plus interest to appellee Louis Barg d/b/a Barg & Company. On March 9, 1981, appellee Barg filed suit against Midwest and appellant May alleging joint and several liability for the principal, interest and attorney’s fees. On the next day, March 10, an attorney, who is the agent for service of Midwest, went to the sheriff’s office and accepted service of process for Midwest and appellant May. A deputy sheriff testified that, upon Midwest being sued, the standard practice was to telephone the attorney and he would then come to the sheriff’s office and accept service of process. Apparently Midwest Steel is owned by appellant May but the deputy sheriff did not know whether the attorney normally accepted service of process for individual appellant May. On April 2, 1981, the same attorney filed an answer for Midwest Steel and appellant. April 2 was not “ ... within twenty (20) days after the service ..., ” and the answers were not timely filed. ARCP Rule 12 (a) Ark. Stat. Ann. Vol. 3A (Repl. 1979). Appellee Barg moved to strike the answers. Midwest and appellant responded only that the motion to strike should be denied because of appellee’s failure to file a brief with the motion in accordance with ARCP 78. The validity of service was not questioned by motion. Appellant May filed an amended answer alleging there had been no demand for payment and, in addition, appellant May individually filed a verified counterclaim alleging that appellee had wrongfully converted his property. Appellee subsequently filed a motion to strike and appellant did not file a responsive pleading. The trial court granted the motion to strike the answers, amended answer and counterclaim. The case was later tried on the issue of the amount of liability and the court entered judgment in the amount of $457,217.55. Only Barney May appeals. Jurisdiction to interpret the Rules of Civil Procedure is in this court. Rule 29 (1) (c). We affirm the trial court.
ARCP 4 (d) (1) provides for personal service inside the state upon an agent authorized by appointment to accept service, a method for service of process not previously authorized. Compare superseded Ark. Stat. Ann. § 27-1121 (Repl. 1962). Our rule provides that service shall be:
(1) Upon an individual, other than an infant or an incompetent person, by delivering a copy of the summons and complaint to him personally, or if he refuses to receive it, by offering a copy thereof to him, or by leaving a copy thereof at his dwelling house or usual place of abode with some person residing therein who is at least fourteen (14) years of age or by delivering a copy thereof to an agent authorized by appointment or by law to receive service of summons. [Emphasis supplied.]
The issue is whether appellant’s attorney was an agent authorized by appointment to receive summons. Two material undisputed facts establish that (1) the attorney accepted service of process and (2) the client-attorney relationship existed. Neither the appellant nor the attorney has ever indicated that the attorney was not in fact authorized to accept service; they simply maintain that appellee did not prove the authorization.
The authority of the attorney to bind his client by acceptance of process pursuant to ARCP 4 (d) (1) may be implied in law from the ostensible circumstances, although an attorney does not, by mere virtue of employment, have authority to accept service of process. The ostensible circumstances implying the authority are well defined in this case. At the hearing on the motion to strike the appellee’s attorney stated, “He [appellant May’s attorney] accepted service on behalf of Mr. May individually.” The judge, after noting the prohibition against an attorney testifying and also trying the case, asked the attorney if he desired to testify and he responded, “I have no objection going to that. I do not intend to testify.” We have stated, “Failure of a party to an action to testify as to facts peculiarly within his knowledge is a circumstance which may be looked upon with suspicion by the trier of the facts.” Starns v. Andre, 243 Ark. 712 at 719, 421 S.W.2d 616 at 620 (1967), quoting Broomfield v. Broomfield, 242 Ark. 355, 413 S.W.2d 657 (1967). The failure of either the appellant or his attorney to testify gives rise to the presumption that the testimony would have been against appellant’s interests. Starns v. Andre, supra. While contending that the authority of the attorney was not established and yet offering no explanation, the appellant paradoxically contended the pleadings filed by the same attorney were valid. The trial judge’s finding that ostensible circumstances were sufficient to prove appointment to receive service of summons is not clearly erroneous, therefore we affirm. ARCP 52.
In no pleading has the appellant asserted the present claim that service of process was insufficient. The trial judge, rather than holding the authority was proven, could well have held the present argument was waived because ARCP 12 (h) provides:
(h) Waiver or Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, or pendency of another action between the same parties arising out of the same transaction or occurrence is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or by an amendment thereof permitted by Rule 15 (a) to be made as a matter of course. [Emphasis supplied.]
The standing of the counterclaim was dependent upon the timely filing of an answer. ARCP 12 (b). See Huffman v. City of Hot Springs, 237 Ark. 756, 375 S.W.2d 795 (1964); Kirkendoll v. Hogan, 267 Ark. 1083, 593 S.W.2d 498 (Ark. App. 1980).
Once the trial court determined that the appellant’s answer was not timely filed, the only question remaining was whether excusable neglect, unavoidable casualty or other just cause would permit the late filing of an answer. ARCP 6 (b). The appellant neither pleaded nor proved such plight.
The appellant alternatively contends that Article II, § 13 of the Constitution of Arkansas provides for due process for any defense asserted in a civil case and “fundamental standards of fairness and justice” give him the “right to enter the lawsuit on April 2, 1981, by filing his answer.” While there is no apparent merit in the argument, we do not reach it because it was not raised below. “We have held many times that the trial court must be presented with a constitutional issue before we will consider it on appeal.” Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980); but see Matthews v. Bailey, 198 Ark. 830, 131 S.W.2d 425 (1939); Howell v. Howell, 213 Ark. 298, 208 S.W.2d 22 (1948).
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George Rose Smith, Justice.
On May 14,1980, Georgia Huchingson underwent surgery at a hospital in Little Rock. In connection with the operation, certain drugs had impaired her ability to breathe during the surgery; so the anesthetist had to provide artificial breathing for the patient. During the operation the artificial breathing procedure malfunctioned for several minutes, causing Mrs. Huchingson to suffer serious lung injury and irreversible brain damage. This action for compensatory and punitive damages was brought by Mrs. Huchingson’s guardian and by her husband against various local defendants and against the appellant, Airco, Inc., which had manufactured a machine used in the artificial breathing procedure.
A day or two before trial, liability for compensatory damages was admitted both by Airco and by the partnership of doctors that had provided the anesthesiological services. The plaintiffs then dismissed all their causes of action except the admitted claims and the cause of action against Airco for punitive damages. The jury awarded compensatory damages of $1,070,000 against the partnership and Airco and punitive damages of $3,000,000 against Airco, whose net worth had been shown to exceed $607,000,000. The compensatory award has been paid.
For reversal Airco argues only that there is no substantial evidence to support a punitive damage award. The pivotal issue was submitted to the jury in AMI 2217, which includes this admittedly correct statement of the law: “Before you can impose punitive damages, you must find that Airco, Inc. knew or ought to have known, in the light of the surrounding circumstances, that its conduct would naturally or probably result in injury and that it continued such conduct in reckless disregard of the circumstances from which malice may be inferred.” AMI Civil 2d, 2217 (1974). Specifically, it is insisted that the proof does not show that Airco should have known that injury was natural or probable or that Airco, instead of being merely negligent, continued its conduct in reckless disregard of the consequences. The case comes to us as involving products liability. Rule 29 (1) (m).
We need not describe the artificial breathing apparatus in complete detail. Two machines are used, side by side near the operating table. The anesthesia machine, not in issue here, provides, through a system of similar black hoses, a continuous flow of mixed gases that serve as fresh air. The air travels in a circuit. It enters the patient through a mask, equipped with valves, that is held against the patient’s face. When the air leaves the patient’s lungs, it returns to the mask and travels through a different hose back to the anesthesia machine, which has an absorber to remove carbon dioxide.
The flow of air to the patient’s lungs must have alternate positive and negative pressure, so that the lungs will expand and contract as in natural breathing. That alternating pressure is provided, during a typical operation, part of the time by a flexible bag which an anesthetist squeezes and releases by hand and part of the time by the second machine, a ventilator that also creates alternating pressure.
For various reasons it is usually necessary to switch back and forth from the bag to the ventilator. The Airco ventilator used in Mrs. Huchingson’s case had two ways for the anesthetist to. make the switch. One method was entirely manual: To change, for example, from the bag to the machine, the anesthetist would simply remove the bag from the absorber, connect a hose in its place, and start the ventilator machine. That method takes about ten seconds and involves no substantial hazard to the patient.
The other method eliminates the manual procedure, using instead an optional accessory called a selector valve. This small device is to be attached to the ventilator. It has three “ports” of the same size, open pipes over which a hose or the neck of a bag may be slipped. When properly used, hoses are attached to the two ports on the sides of the device and a bag may be attached to the middle port, which extends downward. The device has a straight handle with two possible positions, pointing down when the bag is in use and horizontally when the ventilator is in use. The anesthetist turns the handle to make a desired switch.
What happened during Mrs. Huchingson’s surgery was this: Before the operation began, a hose had been properly attached to the right-hand port on the selector valve, with the other end of the hose open for later connection to the absorber. Someone, however, had incorrectly put another hose on the middle port, where only a bag was meant to be connected. When the nurse-anesthetist, an employee of the partnership, decided to stop using a bag at the absorber, she removed it and by mistake attached in its place the hose hanging from the middle port. The effect of the improper connections was to permit the anesthesia machine to continue to pump air into the patient’s lungs, with no way for the air to escape. The ensuing build-up of pressure and lack of oxygen resulted in serious damage to the patient’s lungs and brain.
The plaintiffs’ proof, consisting mainly of expert testimony, tended to show that Airco designed, manufactured, sold, and persisted in selling the selector valve even though Airco should have realized originally and should also have learned before 1980 that the device was so inherently dangerous that it ought never to have been put on the market. The foreseeable danger was just what happened during Mrs. Huchingson’s surgery — human error brought about by the presence of several identical black hoses and by the necessity for connecting them correctly to three similar ports that were too close together and that lacked adequate labels and warnings. The danger would have been eliminated had Airco substituted for this particular selector valve either of two available alternatives: the manual system for which the ventilator was designed or a selector valve having only two ports instead of three.
The plaintiffs called as their first witness Wayne Hay, an Airco staff engineer, who had designed both the ventilator and the selector valve in 1973 when Airco decided to manufacture its own ventilators instead of selling one made for it by another company. From the beginning Hay was aware of the hazard in the use of the selector valve: “[S]ince you have a choice now, you can make the wrong choice.” Before the ventilator and selector were marketed, they were field tested at about 30 representative sites throughout the country. Reports were unfavorable. One said that no one liked the bag/ventilator valve; it could have killed the patient. Other reports said the selector was dangerous and could kill people. Nevertheless, the company manufactured and sold the selector valve. Hay testified that since the users would be professional people, they should have common sense enough to learn all the hazards before using the selector. Hay also defended the company’s action because the selector was offered as an optional accessory. “The user can buy it or not as he chooses. If he chooses to buy it, the choice is his, not mine. That’s a professional choice of his. I see no reason why we should refuse to sell it if he wants it, and there is an obvious market for it.” Hay had seen a 1977 article about an incident similar to the Huchingson case. He said he probably read follow-up letters to the editor saying that the selector valve was dangerous and shouldn’t be on the machine, but they didn’t tell him anything he didn’t already know. Since no other employee or officer of Airco testified, the jury doubtless accepted Hay’s testimony as stating the company’s position.
Another witness was Dr. Susan Dorsch, an experienced anesthesiologist from Florida. She believed strongly that the selector valve should not be on the market. She approached the matter by using a “benefit to risk ratio.” She believed that the risks were overwhelming as compared to the benefit of convenience. She said it was easy to make a misconnec tion, because the ports were the same size and close together. Such a misconnection could kill the patient or cause irreparable damage to the lungs and brain within a very short time. Dr. Dorsch also pointed out that while using the ventilator the nurse-anesthetist has a lot of things on her mind: She must regulate the amount of anesthesia, watch the blood pressure, check the cardiac monitor, squeeze the bag to ventilate the patient, and watch the patient’s chest. Dr. Dorsch also cited a 1972 article that referred to accidents similar to the Huchingson incident, involving an increase in breathing pressure resulting from a misconnection.
Two members of the defendant partnership testified (one by deposition) that the selector valve was dangerous. They did not learn until after the Huchingson incident that the ventilator could be used without the selector valve, which they said they would never use again. One of them said that the selector valve “is absolutely a time bomb, and anybody that sits there and connects it a few thousand times, they’re going to misconnect it sooner or later.” Dr. Drinker, a bio-medical engineer from Boston, testified that the selector valve is lethal. He did not think that the selector fulfills any necessary function, but it introduces the risk of an accidental connection resulting in death or serious injury.
Another witness, Dr. Leslie Ball, was a safety engineer with 43 years’ experience. He had read the depositions, had examined the operating room and equipment, and in other respects had familiarized himself with the Huchingson case. His purpose was to determine the foreseeability of the injury that occurred. He testified: “And it was very clear that what did happen was just exactly the sort of thing the safety engineer, through predictive analysis, would expect, not very often, but everything that did happen, each event, both what happened to the equipment and what happened to the people, was foreseeable by a reasonably competent engineer.” Dr. Ball believed that the risk presented by the selector valve was catastrophic and should have been eliminated by the manufacturer, either by not selling it or by making it completely safe. He thought that the first time a similar accident happened, as reported in the trade lit erature, the selector valves should have been recalled. The witness concluded that the selector valve is “grossly in violation of safety engineering principles and never should have been put on the market.”
There was other testimony, with very little to the contrary, but the proof we have narrated brings the case within the requirements of AMI 2217. A jury question was presented.
Airco argues that it took a combination of nine separate acts of negligence (most of which are attributed to the nurse-anesthetist) to bring about Mrs. Huchingson’s injuries; so that consequence is said not to have been natural or probable. The exact combination of circumstances is immaterial. What does matter is that serious injury to someone, brought about by human error attributable to the design of the selector valve, was both a natural and a probable consequence of Airco’s conduct. Certainly the jury could have so believed, with substantial evidence to support its conclusion. Moreover, that possibility of injury could have been eliminated had Airco simply put the ventilator on the market without the optional but lethal selector.
It is also argued that Airco, like the tortfeasor in Forrest City Machine Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981), was guilty only of simple negligence rather than of that persistent reckless disregard of consequences that is essential to liability for punitive damages. The two cases are decidedly dissimilar. Airco knew that the patient’s very life always depended upon the artificial breathing supplied by the ventilator. Consequently the marketing of an optional, unnecessary, and lethal selector valve is not comparable to the sale of farm machinery which, in Aderhold, did not necessarily involve a similar continuous possibility of death or serious injury. Furthermore, it does not appear that in the Aderhold case there was proof similar to that now before us — that the manufacturer knew from the outset, by its own testing, that an unnecessary component of the product was so deadly that it should never have been made available to the public. On the record as a whole we hold that the issue of punitive damages was properly submitted to the jury.
Affirmed.
Purtle, J., not participating.
Hickman, J., concurs. | [
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John I. Purtle, Justice.
The trial court found that the airport commission for the city of Hot Springs, Arkansas, was operating within its authority when it authorized appellee to operate vehicles for hire between the airport and other points, although such vehicles were not licensed pursuant to an ordinance enacted by the city council. There were several other matters considered by the trial court. This appeal is from that portion of the decree denying an injunction against appellee’s continued operation of Airport Limousine Service without first obtaining a permit and license approved for that purpose by the Hot Springs City Council.
Appellants urge that the airport commission of the city of Hot Springs is not empowered to authorize operation of motor vehicles for hire as such power is vested exclusively in the city of Hot Springs. The trial court reached the correct decision although relying in part on the wrong authority. We affirm its decision.
Resolution No. 399 by the city of Hot Springs, Arkansas, approved the original airport limousine franchise agreement between the city of Hot Springs and the appellee’s assignor on June 8, 1953. The Airport Limousine Service has continued to operate since that time. Resolution No. 546 of the city of Hot Springs approved the second airport limousine franchise agreement between the city and the Airport Limousine Service on March 4, 1963. On January 4, 1965, the appellee, Bridges, acquired the right to operate the limousine franchise service and has continued to operate said service since that date. The court found that the city council never formally confirmed the assignment to appellee Bridges of the rights under the second airport limousine franchise agreement. In 1968, the city of Hot Springs enacted Ordinance No. 2963, codified in the Hot Springs Code as §§ 4-12.11 through 4-12.20 which created the Hot Springs Airport Commission. Section 4-12.15 lists the duties and powers of the airport commission as follows:
The airport commission as hereunder appointed shall have full and complete authority to manage, operate, improve, extend and maintain the Hot Springs Muni cipal Airport, its related properties and facilities, and shall have full and complete charge of said airport, its related properties and facilities, including the right to employ or remove any and all assistants and employees of whatsoever nature, kind or character, and to fix, regulate and pay their salaries, it being the intent of this article and the act under which it is authorized to vest in said airport commission unlimited authority to operate, manage, maintain, improve and extend said Hot Springs Municipal Airport, its related properties and facilities, and to have full and complete charge therefor.
The appellants operate a fleet of taxicabs pursuant to authority granted by the Hot Springs City Council. In fact, the taxicabs operated by the appellants were acquired from the appellee. The appellants obtained their present license from the city of Hot Springs although they were granted the franchise by the airport commission. Both the Airport Limousine Service and the taxicabs obtain their license from the city of Hot Springs. The basic question presented to this court is whether the airport commission may grant authority, on a bid basis, to operate an airport limousine service for persons who are arriving and leaving from the Hot Springs Municipal Airport. There is no dispute but that the city issued the first franchise for an airport limousine service and continued to do so until they created the airport commission at which time they apparently attempted to give the commission the authority to award a franchise for the operation of the airport limousine service. We have set forth above the powers delegated to the airport commission. There is no specific authority to award a franchise to operate a limousine service. However, the commission sought bids and renewed the agreement for Airport Limousine Service which was in existence at the time of the creation of the commission. The franchisee is required to obtain a license from the city of Hot Springs. For a period of almost 30 years the Airport Limousine Service has operated from the Hot Springs airport and for about 18 years has rented a stand for the Airport Limousine Service across the street from the Oaklawn Race Track.
In the case of Bridges v. Yellow Cab Co., 241 Ark. 204, 406 S.W.2d 879 (1966), the present appellee brought an appeal against the Yellow Cab Company in an argument over the operation of the same limousine service at the municipally owned airport. The question presented was not exactly the same but we did hold that Bridges had a right to operate. Airport Limousine Service has an exclusive franchise granted by the City of Hot Springs. Therefore, we have expressed by precedent that the city of Hot Springs has the power to authorize the right of Airport Limousine Service to operate. The question before us is whether the city of Hot Springs has, indeed, authorized the operation of Airport Limousine Service. The city of Hot Springs has been aware of this decision as it continued to issue the license for the service which we upheld in the foregoing opinion. We must determine whether the powers enumerated in setting up the airport commission included, at least by implication, the power to award a franchise for an airport limousine service. We do not think that the ordinance creating the airport commission granted the commission sole authority to grant such a franchise. However, since the commission is responsible to the city government and the city has continued to honor and approve the franchises granted by the commission by collecting a fee and licensing each vehicle, we think the city has ratified the actions of the commission.
Affirmed.
Adkisson, C.J., Hickman and Dudley, JJ., dissent. | [
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By the Court,
Dickinson, J.
The question turns upon a rule of practice — the striking out of the plea. It is certainly more regular to demur, when thé plea is not good, (as in this case), and let it be adjudged bad, on demurrer; but, if it is rejected, on the application of the plaintiff, the court will not reverse the cause, that a demurrer may be filed to a bad plea; and it was so ruled, as we think, correctly, in the case of Depen et al. vs. Bank of Limestone, 1 J. J. Marsh. 380. The judgment must be affirmed.
W. Sf E. Cummins, for the appellant,
presented a petition for reconsideration, which was refused, and the judgment affirmed. | [
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By the Court,
Lacy, J.
The question presented by the record is an important one, and we have maturely considered it. It resolves itself simply into this inquiry: Can the return of the sheriff be contradicted or disproved by extraneous evidence, introduced by himself? No proposition, to our minds, can be clearer than that it cannot. This rule is fully supported by authority; and the reason, justice, and necessity of it can, in no case whatever, be questioned. The return of the sheriff is an official, ministerial act, and forms a part of the record of the Court, which can neither be impeached nor questioned aliunde by him. It proves itself, for it has the sanction and seal of judicial truth attached to it; and to permit its verity and sacredness to be called in question by other evidence, would be virtually to abolish and destroy the records of public justice, and to produce the utmost uncertainty and incalculable mischief into the whole proceeding. The execution is but the mandate of the judgment of the Court, moulded into form and shape by the authority of law, and speaking at once its will and command, both of which are entrusted io the officer for its due service and return, he being but the organ and the instrument of the law, for carrying into effect its judgment and decrees. The levy and return of the execution constitute part of the judicial proceedings in the case, and are so intimately interwoven with them, as to become a constituent and important part of the public documents of the country. It is true, that the Court will allow him, upon application, to amend his return; but then this privilege is given to him upon the principle that the truth of the facts ought to appear of record, and the sheriff, having been mistaken in regard to them, is permitted to alter the return. It is for this reason, as well as for others of a more important character, that the return of a sheriff must prove itself, and that he must be bound by it; and in no instance will he ever be permitted to contradict or explain it away. If that were the casof-the law, speaking through the officer, would be contradicted and disproved by the acts of the individual himself, in his private capacity. The sheriff is then concluded by his return ; and his liability, so far as he is concerned himself, is fixed by his own act. That being the case, it only remains for us to see whether the return, in the present instance, will charge him, or whether he is exonerated by it.
His return, in substance, states, that he levied upon certain real and personal estate, and choses in action, of the defendant in the execution, sufficient to satisfy the debt of the plaintiff below, and that he exposed the same to sale, and that the bid was sufficient to cover the amount of the execution. These facts appear upon the return of the execution, and beyond all doubt fix his liability. The levy was sufficient to satisfy the execution; and, in contemplation of law, it was satisfied that moment, unless the return on its face shows some matter sufficient to change this legal consequence. The sheriff made the seizure: he cannot discharge himself by contradicting his own return, nor by showing that the property levied upon was that of another, or that he has applied the fund to some other execution. He has no right to make the levy, unless it is lawful. An unlawful seizure subjects him to damages, and authorizes the party who has been injured by the unwarrantable levy, to treat him as a trespasser.
In this case, the sheriff endeavors to show the appropriation of the fund to the payment of prior executions. This may be, and probably is, true; but, if it be so, he should have returned the execution properly, in the first instance, by showing that he had levied in favor of the prior executions, and that he had exhausted the property of the debtor to pay them. These facts should appear upon the return of the executions themselves. This he has not thought proper to do. He has made the levy on the defendant in error’s execution; the property seized on was sufficient to discharge it; the sale was made for that purpose; and the facts returned on the execution itself, show that he had in his hands, or ought to have had, a sufficient fund to have satisfied the execution, exclusive of the dioses in action that were levied upon. A motion is given against the sheriff for an improper or unwarrantable return, by our statute regulating the proceedings in such cases. The remedy afforded by the act has been substantially complied with; and he being bound by the truth of his return, the Court below properly sustained the motion.
Judgment affirmed. | [
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By the Court,
Lacy, J.
An objection is taken to the sufficiency of the writ, in this case. In inspecting the record, we have no doubt but that the writ sets out, with sufficient certainty, the time and place where the defendants aré required to appear. It does not, it is true, state that it is in the city of Little Rock, but avers that it is at the .-Court-house in the county of Pulaski, and at the time prescribed by law.
It is true, in this case, that there is no profert made of the writing sued on, but the defendants, by failing to demur, cannot now take advantage of it.
Judgment affirmed. | [
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By the Court,
Lacy, J.
The question as to the constitutionality of the Bank of the State of Arkansas, is not open for investigation, as that point has been expressly ruled, in several cases before decided by this Court. The objection that there is a variance in the judgment, it being rendered in the name of the State Bank, against the plaintiffs in error, we deem to be a mere clerical misprison. The declaration and writ show, that the suit was brought in the name of the Bank of the State of Arkansas. And when the judgment states that the plaintiffs below recover against the defendants, it certainly means, the legal corporation who had a right to sue. The objection to the writ, that there is no seal thereto, would be well founded, had it not been waived by consent, upon the record.
The question in regard to the interest has also been expressly decided, in the case of McFarland and others vs. The Bank of the State of Arkansas.
Judgment affirmed. | [
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By the Court,
Dickinson, J.
The statute requires all suits to be brought in the county where the defendant resides, or may be found, except where the Bank of the State, or the Real Estate Bank, is plaintiff. In either of these cases, the Circuit Court of the county in which the Principal Banking-house, or that of one o'f its Bra ches, is located, may issue its writ to any county in the State. These banks must sue in their corporate names, viz: “ The Bank of the State of Arkansas;” “The Real Estate Bank of the State of Arkansas.” There is no such corporation in this State as the one by which the defendants in error have described themselves, nor is there any statutory provision in their favor. The Circuit Court of Independence county erred in issuing the writs to Mississippi and Crittenden counties. j
We have not deemed it necessary to look into the question of misnomer, if there be one. The rules upon that subject are too well settled to leave any doubt as to the proper mode of proceeding.
Judgment reversed. | [
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By the Court,
Dickinson, J.
This is an application in behalf of one of the Circuit Judges of the State, to this Court, for a writ of mandamus upon the Auditor of Public Accounts, requiring him to issue his warrant upon the Treasurer for the amount claimed to be due the applicant, as a part of the salary •of his office. The Auditor has responded to the rule entered; and the facts he states, show conclusively, that, at the time the salary is claimed to have been due from the State to the Judge, for his services in office, there was in the tr easury a sufficient amount of money appropriated by law to pay the circuit judges, but that the money then in the treasury has been since expended for other purposes, and that there is not now any appropriation by law, unexpended, for the payment of salaries due the former judges of the Circuit Court.
Upon this state of fact, the question arises, whether the act of the Legislature^ approved March 3d, 1838, is repugnant to the 8th section of the Bth article of the constitution. The words of the act are, “that, if any judge of the Circuit Court shall fail to hold his court in any of his counties, at such time as is required by law, such judge shall forfeit and pay to the State, the sum of one hundred and fifty dollars.” The act further makes it the duty of the clerk of the Circuit Court of the county in which such failure may have happened, to certify the same to the Auditor of Public Accounts: and if the judge cannot satisfy the Auditor, by conclusive testimony, that it was impossible for him to hold such court, then it is made the duty of the Auditor to deduct the penalty from the salary .of the judge. Chap. 42, sec. 1, Rev. St. The clause of the constitution before referred to, declares, that “ the judges of the Supreme and Circuit Courts shall, at stated times, receive a compensation for their services, to be ascertained by law, which shall not be diminished during the time for which they are elected. They shall not be allowed any fees or perquisites of office, nonhold any other office of trust or profit under this State or the United States.”
A comparison of the a.ct with the constitution, conclusively settles this question, which, to our minds, is of easy solution. The object and design of the constitution are, to place the judicial department above all unwarrantable interference on the part of the Legislature, except in the mode and manner pointed out in the instrument, and to separate these two departments from each other, except so far as their action was deemed necessary and proper: and this remark holds equally good as to the executive department. This Court has so repeatedly said, that the three political departments were each and all supreme, within their peculiar and constitutional jurisdictions, that wc deem it unnecessary to add any thing more upon that branch of the subject. To question or deny this great conservative principle of constitutional liberty, is to impeach the right of self-government itself, and to destroy the only means given, under our political system, by which that invaluable blessing can be secured and maintained. The constitution has wisely guarded against the encroachment of any of the departments upon its co-ordinate branches; and -it has treated their unwarrantable invasions as an infraction of the sovereign will of the people, ns expressed in the instrument, and, consequently, lias adjudged them to be utterly void. /
Each and all of the departments of government are directly responsible to the people, and amenable tc them in the mode and manner pointed out by the constitution and the laws; and they are amenable in that way alone. The Legislative, through (ho agency of the elective franchise, and the rales proscribed by itself for the government of its proceedings; the Executive, by the right of suffrage', and by im-' peachment for gross misconduct and corruption, formal-administration in office; the Judiciary, by the election of the Legislature, for a term of years, and by address or impeachment for gross misconduct and corruption in office. In order to render tho judiciary independent of the other two departments, the convention has declared, that they shall, at staled times, receive a compensation for their services, to be fixed by lawp and which shall not he diminished during the lime for which they are elected. They are not allowed to take any other fees or perquisites, or to hold any other office of trust or profit. For the term they are elected’, the compensation for their services cannot he diminished by the Legislature, for such are toe express words of the constitution, and its injunction must be respected and obeyed. This negative declaration leaves the Legislature, however, full power to increase their salaries, but, when they are once fixed by law, they cannot again be diminished, either dirccfly or indirectly, so far as respects the officer, for the period of his election. Before or after his election, the Legislature may fix the amount of his compensation; but, as soon as it becomes fixed, at that moment the compensation her comes a vested and constitutional right, appertaining and belonging to the office, and it cannot be divested, or in any manner weakened or destroyed, during the term for which the judge holds his commission. The true object and design of this clause in the constitution were, to make the judicial department independent of the Legislature, so far as the compensation or salary of the judges was concerned, after they had prescribed the amount (o be paid them for their services. The convention well knew that the judiciary was the weakest of all the departments of government, and most liable to attacks from the other departments. They, therefore, guarded' it with watchfulness and wisdom, so far at least as the independence of their salary was concerned, from all unwarrantable interference whatever. If the power were given to the Legislature over the salaries of the judges, then they were fully aware that the popular branch of the government, in times of political commotion and high excitement, could readily bend the judiciary into mere instruments of its will, and thus completely destroy its independence, or drive or degrade the judges from the bench, by leaving them merel}' a nominal compensation.
The judiciary would then prove no safeguard or harrier for the de-fence of public liberty, nor would it be a shield or asylum to protect and uphold the rights and franchises of the people. So far from answering these great and invaluable purposes, if their salaries were exclusively under the control of legislation, the will of the Legislature would then, in effect, be supreme. Under our system, the Executive is clothed with but little authority; and, if the Courts could be disgraced, and rendered imbecile by the reduction of their salaries, or moulded to suit their wishes and designs, then the judiciary would have no higher office or duties to perform than simply to register the mandates and edicts of the Legislature. How, then, could the judges declare the will o£ the Legislature, or rightly interpret the laws, so as to make their decrees and judgments living monuments of truth and justice to their own age, and bequeath them, as a rich and invaluable legacy, to posterity, around which the friends of liberty could rally, and to which they might cling, with hope and confidence, in the worst of times, and find shelter and protection against the encroachments of ambition and tyranny. Hence, the convention has thought proper to place the salary of the judges out of the reach of the Legislature, and to take away all temptation to assail their independence through the means of their subsistence.
All experience proves, that power over a man’s subsistence amounts but too frequently to a power over his will. If the judges fail to do their duty, they are liable to removal by address or impeachment. The constitution forbids their salary being taken from them, or reduced in its amount. The Legislature cannot effect, indirectly, what it is forbid to do, directly. It is certainly a clear proposition, that the Legislature cannot declare that the salary of the judges, upon a failure to discharge their duties, shall be forfeited to the State. To allow them to do that, necessarily makes them the judges of what should constitute a forfeiture; and that would indirectly place in their hands the power to lessen, or entirely take away, their salary, during the term for which they are elected, which is clearly and pointedly inhibited by the constitution. The salaries of the-judges of the Supreme and Circuit Courts stand upon the same ground',J and the Legislature can no more touch the salary of the one than of the other. They are both fixed, so far as their diminution is concerned, by the constitution, and arc inviolate, and excepted out of the powers of the Legislature. The act in question declares, in express terms, a penalty against the circuit judges for a failure to hold a court, in each circuit, of a hundred and fifty dollars, and makes the Auditor a judge of the sufficiency of the excuse, upon the certificate of the clerk of the county, and makes it his duty, if the judge was not prevented from attending his courts by causes unavoidable, rendering his attendance impossible, to withhold from him his salary for that amount. We can regard this law in no other light than as an act of forfeiture in favor of the State, for the non-performance of a judicial duty, and, for that failure, it decrees a certain amount of the judge’s compensation forfeited to the State.
If this does not expressly diminish the salary of the judge, during the time he is in office, by indirect, yet effectual means, then we are sure language cannot give the power. To our minds, the act is a clear and palpable violation of the constitution. It is a direct and dangerous attack upon the independence of the judiciary, and upon the freedom and happiness of the people, and in contravention of their supreme will, as expressed in the constitution. We therefore hold the act as void, so far as it interferes with the salary of the circuit judges. But as, from the return of the Auditor, it appears that there is no ap. propriation to meet the amount claimed; and, as the constitution prohibits any money to be drawn from the treasury but in consequence of an appropriation by law, Const., sec. 4, Art. 6;
Rule discharged. | [
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Held, that if, on appeal from the probate court, the circuit court acts only on the exceptions taken, but wholly omits, on sustaining the exceptions, to try the matter de novo, or make such order and decision as should have been made by the probate court, the judgment is not final, and error does not lie to this court. | [
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English, C. J.
Bench & Bro. commenced this suit against Sherrill by attachment on a promissory note, before a Justice of the Peace of Johnson county. Defendant did not dispute the debt, but controverted the grounds of attachment. Plaintiffs obtained judgment, defendant appealed, and on a trial de novo in the Circuit Court, the verdict and judgment were in favor of plaintiffs. Defendant filed motions in arrest of judgment, and for a new trial, which were overruled, and he took a bill of exceptions, and appealed to this court.
I. The motion in arrest of judgment was upon the ground that there was no affidavit, as required by law, as the foundation for the proceeding by attachment.
The affidavit filed before the Justice was defective, the court rightly permitted it to be amended during trial, ( Gantt’s Dig., Sec. 394; Rogers v. Cooper, 33 Ark.. 411,) no ground of attachment being stated in the amendment that did not exist at the commencement of the suit.
II. There were two grounds of attachment stated in 0 affidavit:
1st. That defendant had left the county of his residence . ’ to avoid the service of a summons.; and
2d. That he had sold or otherwise disposed of his property with the fraudulent intent to cheat, hinder or delay his creditors.
The court charged the jury, against the objection of appellant, that:
“If the jury believe from the evidence that defendant left the county of his residence to avoid the service of a summons ; or that he had sold, conveyed, or otherwise disposed of his property, with the fraudulent intent to cheat, hinder, or delay his creditors, they will find for the plaintiffs.
‘ ‘ It need not appear that the defendant had disposed of his property with the fraudulent intent to cheat, hinder or delay the plaintiffs ; but if it appear from the evidence that the defendant had sold or otherwise disposed of his property, with the fraudulent intent to cheat, hinder or delay any one of his creditors, this will be sufficient.”
There was evidence conducing to prove that appellant made a pretended sale of part of his property, and left Johnson county, where he resided, in the night time, with his family and effects, and went into Sebastian county.
The theory of his defense was that he had had much sickness in his family and become indebted to a doctor of Rose-ville, who had made an unjust bill against him, and that his purpose in making a sham sale of part of his property and leaving the county clandestinely, was to avoid process at the suit of the doctor. That his purpose was not to avoid the payment of the debt he owed appellees, which he admitted to be just and had made arrangements for the payment of part of it.
The seventh ground of attachment, provided for in Sec. 388, Gantt’s Digest, is where the debtor “has sold, conveyed, or otherwise disposed of his property, or suffered or permitted it to be sold, wdth the fraudulent intent to cheat, hinder or delay his creditors.”
If a debtor makes a fraudulent disposition of his property, to avoid the demand of one creditor, its effect might be to cheat, hinder or delay any other creditor.
So, if a debtor leaves the county of his residence to avoid the service of a summons by one creditor, it would avoid service at the suit of another.
His Honor, the Circuit Judge, correctly charged the jury, and the weight of evidence was a question for them.
Affirmed. | [
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English, C. J.
It appears from the transcript in this case that on the twenty-third of July, 1880, an information, in writing and under oath, etc., was filed before a Justice of the Peace of Pulaski county, against Kate Marsh, for selling, in the count}'' of Pulaski, on the fifteenth day of June, 1880, vinous liquors, in less quantities than five gallons, without license. Whereupon a warrant of arrest was issued, etc. She was tried, found guilty by the Justice, fined $200, and appealed to the Circuit Court.
In the Circuit Court her counsel demurred to the cause ■of action (as it is styled' in the demurrer) because it did mot state facts sufficient to constitute a public offense. The Court sustained the demurrer and discharged the accused,, and the State appealed.
The chargb was (with specification of time and place) for selling vinous liquors in less quantities than five gallons, without license.
The charge is plainly within the words of the first section of the Act of the eighth, of March, 1879 (Acts 1879,. p. 33), which provides :
“That it shall not hereafter be lawful for any person-to sell any ardent, vinous, malt -or fermented liquors, in this State, or any compound or preparation thereof, commonly called tonics, bitters, or medicated liquors, in any quantity or for any purpose whatever, without first procuring a license from the County Court of the county in which such sale is to be made, authorizing such person to-exercise such privilege ; provided, manufacturers of ardent, vinous, malt or fermented liquors can sell, in original packages, without license; provided, further, that said original-packages shall not contain less than five gallons.”
It is manifest, from the language of the provisos, that all manufacturers of ardent, vinous, malt or fermented liquors can sell in original packages of not less than five-gallons, without license, and that this exemption from license is not limited to citizens of this State, but is extended to all manufacturers of such liquors, regardless of citizenship or residence.
No provision of the section, thei’efore, is, in our opinion,, in conflict with the clause of the Constitution of the United States, which declares that Congress shall have power “to-regulate commerce with foreign nations,” and among-the several States, and with the Indian tribes ; nor in conflict with the section which declares that, “The citizens of each State shall be entitled to all privileges and immunities' of citizens in the several States.” See Const. U. S.. Art. 1, Sec. 8 ; Art. 4, Sec. 2.
It has, however, been more earnestly urged in argument that the fifteenth section of the act is in conflict with one or .both of the provisions of the Constitution of the United States, above quoted, and that the whole act is therefoi’e null and void.
Section 15 is as follows :
“ This act shall not be held to apply to one who manufactures and sells wines in this State, from native grapes or berries, or other fruits grown in this State, and who sells no other liquors, ardent, malt, vinous or fermented.”
Under this section, taking it as it reads, a person in another State, California, for example, cannot manufacture wines there from native grapes, berries, or other fruits grown in that State, and sell them in this State, otherwise than in packages of not less than five gallons, without procuring license, at an expense of $200.00, with officers’ fees added (Sec. '4), under penalty of not less than $200.00 nor more than $500.00, while any - person may manufacture and sell wines in this State (in any quantity, however small) from native grapes, berries or other fruits, grown in the State, who sells no other liquors, ardent, malt, vinous or fermented, without procuring license.
This section is not in conflict with the section of the Constitution of the United States, which declares that “ The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” because' a citizen of any State may manufacture and sell in this State, regardless of quantity, wines from native grapes, berries or other fruits, grown in the State, without license, if he sells no other liquors, ardent, malt, vinous or fermented. Citizenship is not involved in the matter. But the section, as it is in conflict with the clause of the Constitution of the United States, which declares that Congress shall have power (and in effect, not the States'), “to regulate commerce with foreign nations, and among the several States,” etc., because it undertakes to discriminate in favor of wines manufactured in this State, from its products, and against wines manufactured out of the State, and from grapes, berries and other fruits grown out of the State. That a State Legislature cannot make such discriminations, is now too well settled by a series of decisions of the- Supreme Court of the United States, to admit of question. •
Welton v. The State of Missouri, 1 Otto, 275, is in point. A statute of Missouri required the payment of a license tax, by peddlers, who dealt in the sale of goods, wares and merchandize, which were not the growth, produce, or manufacture of the State, and required no such license tax from persons selling in a similar way goods, which were the growth, produce or manufacture of the- State ; and it was held that such discrimination was forbidden by the commerce clausé of the Constitution of the United States.
So in Tiernan v. Rinker, 12 Otto, 123, where a Texas statute discriminated in favor of wines and beer manufactured in the State, a case similar to the one now before us.
See also Gray v. Baltimore, 10 Ib., 434; Machine Co. v. Gage, Ib., 676; County of Mobile v. Kimball, 12 Ib., 691; Hinson v. Lott, 8 Wall. 148.
In Gray v. Baltimore, sup., Justice Harlan, in an able opinion, reviewing previous decisions of the court on the subject, said : “In view of these and other decisions of'this court, it must be regarded as settled, that no State can consistently with the-Federal Constitution, impose upon the products of other States, brought therein, for sale or use, or upon citizens, because engaged in the sale therein, or the transportation thereto, of the products of other States, more onerous public burdens or taxes than it imposes upon the like products of its own territory.”
It does not follow, however, that because a particular2. section or part of a section of an act is not in harmony with a constitutional provision, Federal or State, the whole 1 ute is therefore necessarily void.
If some of the provisions of a statute violate the constitution, while others are consistent with it, the latter will be maintained, if they can be separated from and stand without the unconstitutional and void parts of the law. The court will treat the unconstitutional parts as if they were stricken out of the statute. Mobile & Ohio Railroad Co. v. State, 29 Ala., 584; Sturgis v. Crowninshield, 4 Wheaton, 122; Bank of Hamilton v. Dudley's Lessee, 2 Peters, 492; Clark v. Ellis, 2 Blackford, 8; Tiernan v. Rinker, 12 Otto, 123; Mills v. Sargent, 36 Cal. 379; Nelson v. People, 33 Illinois, 390; Santo v. State, 2 Iowa, 165.
Nor does it necessarily follow that because part of a section of an act is unconstitutional the whole section is therefore void.
Thus, in C. & F. R. R. Co. v. Parks, 32 Ark., 144, where a section of a tax act undertook to make the recitals of a tax deed “ conclusive ” evidence of the regularity of the tax sale, the court held that it was not in the power of the Legislature to make the recitals of the deed “conclusive” ■evidence, and treated the section as if the word “conclusive” were stricken out.
It was manifestly the policy of the Legislature, by the fifteenth section of the license act, in question, to encourage the home manufacture of wines, from home grown fruits, and we cannot undertake to say that the act would have been passed without the section ; but by treating as stricken from.the section, the discriminating words, which are in con flict with the commerce clause of the Constitution of the-United States, and leaving the section to stand as thus-reformed, the policy of the Legislature, in enacting the section may be to some extent preserved.
The section will be in harmony with the Federal Constitution, as construed by the Supreme Court of the United States, when made to read as follows :
“Sec. 15. This act shall not be held to apply to one-who manufactures and sells wines from grapes, or berries,, or other fruits, and who sells no other liquors, ardent, malt,, vinous or fermented.
The substance of the charge against appellee was that she unlawfully sold vinous liquors in less quantities than five-gallons, without license. The charge was good on demurrer, but if on trial, under.the plea of not guilty, the State proves-that she sold wines in less quantities than five gallons, she may bring herself within the exception made by the fifteenth section of the act as reformed, by proving that the wine sold by her, was manufactured by her from grapes or berries, or other fruits ; and that she was engaged in selling no other-liquors, ardent, malt, vinous or fermented.
For. the error of the court in sustaining the demurrer to the charge,- the judgment must be reversed, and the cause remanded to the court below for further proceedings. | [
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OPINION.
Eakin, J.
The writ was allowed to go, in this case, not-without considerable doubt in the mind of the court as to-its propriety, but in order that the matter might be more intelligently decided upon the return of the transcript and. argument of counsel.
The offices and functions of the common law writ of certiorari, which issued in England from the King’s Bench, or out of Chancery, to supervise the action of inferior-courts and quasi judicial tribunals, have been much contracted in the American States by Constitutional provisions and Statutes defining the jurisdictions of the several courts, opening up the channels of appeal to a common center, and providing definite means for the correction of errors. Hence, a great many cases may arise here, where the necessity of the writ would not be apparent; as between citizen and citizen its use is in the sound discretion of the court, it should in such cases be refused.
It is to be remembered also, that with regard to a very large class of the cases in which the writ was used by the King’s Bench, it is the Circuit and not the Supreme Court which occupies the position analogous to the King’s Bench. They are cases where causes before judgment were lifted into the Superior Court for the more certain administration of justice, where errors of inferior courts were to be corrected, and trials de novo ordered, and where proceedings of public boards and commissioners were to be corrected. These require the exercise of original jurisdiction. It is only where the writ of certiorari is to subserve the purposes of a writ of error, or to bring up or perfect a record, that this. court can be considered as occupying the position of the King’s Bench. The common law powers of that tribunal devolves generally upon the Circuit Courts, which are our highest courts of original jurisdiction.
Further, the writ of certiorari in England was never issued to the Court of Chancery. That was a court of equal dignity with the King’s Bench, and in no way subject to its control. Errors in chancery decrees could be corrected by Bill of Review in the court itself, or by appeal to the House of Lords. Whilst in this counti-y the Courts of Chancery are made courts of record, and equally with the Circuit Courts subordinate to the supreme appellate tribunals, ,by writs of error as well as by appeal, it would still seem that without legislation or some plain necessity, the writ of certiorari should not, as a consequence, be extended to cover cases, which it did not at common law. This is the view of the case taken by M. Powell in his work on Appellate Proceedings. Oiting Ohio decisions. (Nee Sec. 6 of chajpt. 8).
For the rest, the general current and greater weight of the American authorities, although they have not been uniform in their treatment of this question, is still clearly to the effeet that it ought not to issue in any case where there is, or has been, a right of appeal, unless the opportunity of appealing has been lost without fault of the petitioner. This view of the case has been taken by this court in the case of Smith v. Parker, 25 Ark., 518, and other cases.
Looking to the constitution, we find the writ of certiorari specially mentioned' amongst those writs which this court may issue and determine, “ in aid of its appellate and supervising jurisdiction,” connected with an express provision that the jurisdiction of this court shall be appellate only. The only exceptions are in cases of quo warranto to Circuit Judges and Chancellors, and to officers of political corporations to question their legal existence. In these the juris diction is original. Art. VII, secs. 4 and 5. It is further invested with “ a general superintending control ” over other courts, which is elsewhere designated as a “ supervising jurisdiction.” It is well understood that these terms do not give the power to direct the proceedings of inferior courts, in matters of discretion, whilst the cases are in progress, but to keep them within the bounds of their jurisdiction, and to correct errors when committed. This may be done by prohibition, mandamus, appeals, writs of error and, where no jurisdiction exists in the court below, or where records are to be brought into court, by writs of certiorari. These writs and the others mentioned in this connection by the constitution are to be used by this court only as auxiliaries.
It will thus be seen how far the common law use of the writ of certiorari has been superseded, or has fallen into disuetude in modern American practice, especially in appellate courts. In view of this tendency, and considering it as always discretionary, it should not be used unless essential to purposes of justice.
In this case the court at the same term, after the first decree had been entered, and an appeal taken, modified the decree so as to extend the injunction over the time during which the appeal might be pending here. The defendant might have appealed for that modification of the decree, but that was not necessary to his protection, as he had the power to cause the complainant’s appeal to be prosecuted in due time, and the judgment or order of this court would of itself have determined the injunction as effectually as upon his own appeal, in case the decree of the Chancellor on the merits should be affirmed. Besides, he incurs no danger of loss. The sureties on the original injunction bond remain bound during the pendency of the appeal here, and if he should have the appeal docketed and dismissed for want of prosecution, the injunction would cease, and would not be revived by any new appeal taken by complainant. The order of the court below, applied only to the specific appeal already granted.
The court had jurisdiction of the persons and the subjects-J matter, and if the order continuing the injunction in plainant’s favor, after a decree adverse to his equities improper, it could only be error in the court, in improperly moulding the decree to subserve, what seemed to the chancellor, the purposes of justice. It is not uncommon in equity to make orders to protect the rights of parties for a reasonable time after the determination of the suit in that court. How far the court acted prudently may be matter of comment when an opinion maybe rendered on the merits. Suffice it here to say, that there is no objection on the ground of jurisdiction. The appeal itself did not revive the injunction. That is well settled. It required a judicial ■order. But the records and decrees of all courts are within their power during the term, and may be set aside or modified. The effect of both orders, taken together, is not at •once to dissolve the injunction, but to continue it for a determinable period, beyond which it could not extend ; a period which the defendant had the power to bring to a termination and within the time necessary for the hearing of the case here, •and the action of the court upon it; which time indeed, this •court might possibly make shorter, upon a motion to dissolve even during its pendency here, if that should from any cause «eem desirable. After this court acquires jurisdiction it has full power over the whole cause with regard to all things .appearing on record.
Upon all the circumstances of this particular case, we are of the opinion that the writ of certiorari was not within the ordinary rules of practice, nor essential to the purposes of justice. It should be dismissed. Judgment accordingly. | [
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OPINION.
Eakin, J.
This is the same cause which was before Court under the style of Gist, Adm’r v. Gans, reported in 30 Ark. 285. Upon this appeal, the transcript only subsequent proceedings in the Court below, is brought up ; but the former transcript is still before us, and the Court takes notice of its contents.
Upon the return of the cause to the White Circuit Court, the defendant, Gist, for a further defense, pleaded that on a day in the year 1862, “ after the making of said contract in its original form,” his intestate, Thomas, had performed the obligation by delivering to plaintiff, at the town of Des Arc, the full amount of cotton. Gist was afterwards discharged from the administration, and Holland, as administrator de bonis non, substituted as defendant.
The cause was submitted to a jury upon the issues made, and a verdict was found for defendant. A motion for a new trial was overruled, and judgment accordingly — from which plaintiff appealed.
The note had been duly verified by affidavit and presented to the Probate Court, in the beginning. It was again introduced in evidence.
The plaintiff testified that no alteration had been made in the note, which was in his own handwriting. He explained its appearance by saying that “there was a difference in the color of the ink in the words ‘when called on,.51 and the T in the word April; and accounted for it by saying, that often, whilst writing, he would be interrupted and called away; and, when he would return to his desk, would take up a different pen to finish the writing upon which he had been engaged.” He did not swear that it had happened in this particular instance, but that it might have happened. He denied, positively, that he had altered the note, or pro-' cured it to be done. He denied that he had ever received any part of the cotton, by himself or by agent.
Gist, the former administrator, testified that, in the Spring of 1862, at the request of Thomas, he went to Des. Arc, with some cotton for Gans, which he deposited at the warehouse of “the Stewarts,” which was a general depository of cotton, but did not remember stating for whom the cotton was left. It was not weighed. He says that, other loads of cotton were carried to Des Arc, although he,, himself, accompanied only one. Bales weighed, ordinarily,. 450 to 500 lbs.
With regard to the alteration of the note, his memory,, he saj^s, is distinct; that when he saw it in 1867, the ink of the words, “when called on,” was fresher in appearance than now. It seemed brighter then, and the difference between those words and others in the instrument was greater.
Duncan Jackson testified that, in the year 1862, Gans told him he had to go to Des Arc to see about his “Thomas cotton,” and other business, and requested witness to see to his business until his return. He went, and, on his return, made no complaint about not getting the cotton ; made no mention of it at all. Never heard him speak of it again until about three weeks before the trial. He then said he had never received it — that it was burned, and that the whole thing was lost (using quite emphatic language) with the Confederacy. This witness testified, also, as to the difference in the writing in the instrument, and made the same explanation as that made by Gans, as to how it might probably have happened.
Washington Jackson testified that, in 1862, he hauled four or five loads of Thomas’ cotton to Des Arc, taking six bales at a load — with one of which Gist went. The cotton was delivered to the person in charge of Stewart’s warehouse, who seemed to understand for whom it was intended.
This, with the original note, which was submitted to the inspection of the jury, constitute, substantially, all the testimony.
When this case was formerly before this court, the insertion of the words “ when called on,” was treated as material, ■and such as 'would vitiate the note, or. contract, if unauthorized. It has been so treated by the court and counsel in the further progress of the case, and may be considered the law of the case, without further discussion.
It will be found most convenient to take up seriatim the grounds of the motion for a new trial. The first is the refusal of the first instruction asked by plaintiff. It does not appear that this instruction was supported by evidence, and as its refusal.is not urged by counsel as matter of complaint, it may be passed sub silentio. The court did, very fairly, instruct the jury, on plaintiff’s behalf, that the writing sued on was a valid contract, unless they should find that it had been altered by plaintiff, or some person for him, after its execution ; and that, in determining whether or not such alteration had been made, they might be governed by an inspection of the note, in connection with all of the evidence beai’ing on the question ; and, further, that if they found the words ‘ ‘ when called on ’ ’ were written before the execution of the instrument, it would be binding. On the question of payment, the jury, on plaintiff’s request, were instructed that, before finding for defendant, they must find that the cotton was delivered to the plaintiff,.or his agent at Des Arc; or that there had been an offer to make such delivery. By these two instructions, the plaintiff’s case was fairly presented..
The first instruction complained of, for defendant, as given by the court, is this: That if the jury, from the appearance of the note, or other evidence, find on it a suspicious alteration, they should find for the defendant, unless they should find, also, that the alteration was made with the knowledge and consent of the maker.
Confining this instruction to material alterations, as intended (and there was no question of auy other), it does not appear at all inconsistent with the principle laid down by this court, when the case was here before. Of course, it is left to the jury to determine, first, what is “ suspicious ” — and it is not every erasure or interlineation which will be. The jurors bring their common sense, and experience of daily affairs, and their knowledge of the ordinary habits of mankind, to bear upon all such considerations, and are generally shrewd enough to detect, at once, any circumstances of suspicion, as distinct from the ordinary clerical mistakes, and corrections, of unskilled draughtsmen. The Tule in this instruction is laid down', substantially, as it was in the case of Huntingdon et al. v. Finch, 3 Ohio St. Rep., 445, and approved by this court.
The court, for defendant, instructed the j ury that if they Relieved that Thomas delivered the cotton, or caused it to be •delivered, at Des Arc, according to the contract, they should find for the defendant. The criticism is upon the words ■“ according to the contract,” which, it is said, submits a matter of law to the jury. It does not seem so. The writing, if valid, was plain and the jury might determine very well, as a matter of fact, whether there had been a delivery of cotton. As to what in law would constitute a delivery, was a matter, which, if the plaintiff had supposed it doubtful, he might have asked the court to define.
The seventh instruction given for defendant — passing over the fifth, upon which no point was made, is as follows :
“ The jury are also instructed that if they find that there was no alteration of the note; then if they further find that Thomas carried the cotton to Des Arc; and Cans, at or afterwards went there to receive or see about it, saying ‘he was going to see about his Thomas cotton,’ these are facts to be considered by the jury, as evidence that the cotton was carried to Dos Arc at Cans’ request, and if they so believe, they will find for the defendant.”
Sale of Cotton: Delivery, what sufficient.
The evidence was that Thomas had had cotton hauled for Cans, to Stewart’s warehouse, in Des Arc, as much as four or five loads of bales, weighing from 450 to 500 lbs., and six bales to the load, which had been received there by the warehousemen, without question, as if they understood the matter. The cotton was more than enough to discharge the obligation; and if taken by Grans in discharge, even with an implied obligation to account for the excess, would have Gans as his property, without any weighing or other designation. It is -not true that cotton m ust be always weighed and the exact number of pounds set apart to make a transfer. It is generally done before property is received,, but it is not at all essential. Any agreement to receive on one side and abandon control on the other, of property, is sufficient to transfer title.
It must be confessed that the evidence of the delivery and transfer of the cotton to Gans, in this case, is very meagre and unsatisfactory, but it was competent evidence, nevertheless, so far as it went; and considering the lapse of time and the disturbed state of the country, and the better acquaintance of the jury with the circumstances of their particular locality, and the modes of business prevalent at the-time in the community, if it is satisfied, then we do not feel authorized to disturb the verdict. We cannot say there was-no evidence of a substantial nature to sustain the verdict on the ground of payment.
The jury came into court after retirement to ask an explanation of instructions. The court told them orally, “ that if they believed the cotton was taken by Thomas to Des Arc, and left there at the request of the plaintiff, it was a-, delivery within the terms of the contract.” It is always-understood in these off-hand instructions, that the belief must arise from the evidence, and if either party desires to-have this impressed on the jury, it may easily be done. The-oral instruction is not amenable to criticism.
There are less important objections to the verdict, not useful to notice.. We have no legal means of knowing-whether it was rendered upon the ground of payment, or the invalidity of the note, resulting from the alteration. There was evidence on both points, and we think the matter was fairly left to the jury. We cannot say that a verdict for the plaintiff would have been more satisfactory.
Affirm the judgment. | [
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English. C. J.
This suit was commenced November third, 1879, by Jas. P. Jordan, against S. M. Henderson, before a Justice of the Peace of Franklin county. The debt claimed was $75 for rent. The affidavit filed with the Justice states in substance: That the claim is just, and for
rent of a certain tract of land owned by plaintiff, and cultivated by defendant for the present year. That plaintiff has a landlord’s lien on the crop of cotton grown on the land for rent due thereon, and ought, as he believes, to recover thereon the sum of $75, and that defendant is about to remove all his crop, and has removed a portion of it, from the premises, without paying the rent due thereon.
An attachment was issued under the landlord’s lien act, ■andlevied on the cotton.
Defendant answered, denying all the allegations of the ■affidavit, except that he was about to remove the crop from the premises, and had removed a portion of it, as statéd.' He denied that he was the tenant of plaintiff, and that plaintiff was the owner of the land, and alleged that the land belonged to one D. D. Marvin ; that he entered under him, ■and that he was entitled to the rent.
On this answer, defendant moved to dismiss the suit on the ground that the Justice had no jurisdiction to try the cause, because the question of title to land was involved. The motion was sustained, and the suit dismissed without trial or inquiry into the facts by the Justice, and the plaintiff appealed to the Circuit Court.
■ In the Circuit Court, defendant demurred to the complaint •on the grounds-:
First. That it did not state facts sufficient to constitute a cause of action ; and,
Second. That the record in the case showed that the ■Court had no jurisdiction of the subject matter of the action. The Court sustained the demurrer, and dismissed the case-for want of jurisdiction, and plaintiff appealed.
There was nothing in the record of the case to show that-title to the land was involved, or that the Court had no jurisdiction to try the case on the appeal, except the answer of defendant, and neither the Justice of the Peace, nor the Circuit Court should have taken that as true and dismissed the-suit, without a trial to ascertain the facts.
If the relation of landlord and tenant existed between appellant and appellee, the ownership of the land was of no-consequence, and not the subject of inquiry in the suit. See Nolan v. Royston.
Under such a practice, a landlord might not be able to recover rent in any-court. The debt sued for was only $75,, and appellee defeated the suit by simply alleging in his answer that the title to land was involved. If sued in the Circuit Court he might have the case dismissed by alleging-that the title to the land was not involved, that he was tenant of appellant, and the debt, within the exclusive jurisdiction! of a Justice of the Peace.
Reversed and remanded for trial. | [
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English, C. J.
Robert Parks and Nathan Taylor, plaintiffs in error, were charged, tried and convicted before a justice of the peace of Yell county, Danville District, for an assault upon Annie Spears, with á deadly weapon, fined $1000 each, and costs, and ordered into custody, &c.
Without giving any bond, they caused a transcript to be filed in the Circuit Court as if upon appeal.
The State moved to dismiss the appeal because not taken in accordance with law; plaintiffs in error filed a petition under sections 926-31, Gantt’s Digest, to be allowed to prosecute their appeal without bond as paupers. The court refused the prayer of the petition and dismissed the appeal.
Plaintiffs in error could not appeal from the judgment of the justice of the peace without a covenant, by good security, for costs ; and a further covenant to pay the judgment if they desired to stay execution. Gantt’s Dig., Sec. 2104, &c.
Persons may be permitted to prosecute civil suits as paupers under the sections of the Digest above referred to, but they have no application to prosecutions of appeals in criminal cases.
Affirmed. | [
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Karen R. Baker, Judge.
In this child-custody case, appellant Blair from an order in which the Benton County Circuit Court found that a material change of circumstances had occurred since its initial child-custody determination and that, as a result, it was in the best interests of the children that appellee John Blair have custody of the parties’ children. We agree that the finding of a change of circumstances was in error. Because that threshold requirement was not met, we reverse and remand. See Tipton v. Aaron, 87 Ark. App. 1, 185 S.W.3d 142 (2004).
The parties in this case were married for twelve years. During their marriage, three children were born, a son, R.B., born December 2, 1991, a daughter, H. B., bom April 8, 1996, and a second son, W.B., bornDecember 31, 1997. The parties separated on October 29, 2003. Following their separation, appellee filed a petition for an absolute divorce and sought custody of the children. Appellant filed a counter-claim to appellee’s petition for divorce and also sought custody of the children.
In the course of the divorce proceedings, the trial court was made aware of the fact that appellant was involved in an extramarital affair with Kevin Hanshaw, that the relationship began prior to the parties’ divorce, and that, at the time, Mr. Hanshaw was married to another woman. Following the divorce, appellant and her children moved from Rogers, Arkansas, in Benton County to Benton, Arkansas, in Saline County. Although not pregnant at the time of the divorce, appellant subsequently gave birth to a child, fathered by Mr. Hanshaw, out of wedlock.
The change of circumstances arguments focus on the fact that appellant moved from Benton County and the fact that she gave birth to a child out of wedlock. Three provisions of the parties’ divorce decree entered on April 23, 2004 are relevant to our analysis. The decree provided that appellant would have custody and appellee’s visitation would be determined in accordance with the two following provisions:
a. [Tjhat the [appellee] shall have visitation rights in accordance with the Standard Visitation Schedule attached hereto, except that he shall have overnight visitation on Wednesday evening and shall deliver the children to school the next morning. That, if school is out, he shall deliver them to the [appellant] by 7:00 a.m. That in addition, he shall have additional overnight visitation every Sunday with the children being delivered to school or to the [appellant] by 7:00 a.m. on Monday morning.
b. That, if the [appellant] moves from the Benton County area, then the [appellee] shall not have the overnight visitation of Wednesdays and Sundays, but shall have visitation two (2) consecutive weekends from 6:00 p.m. on Friday until 6:00 p.m. on Sunday, the [appellant] shall then have one weekend and [appellee] shall then have an additional two (2) weekends. That said visitation shall continue in such rotation. That the [appellant] shall be required to provide transportation for said children to [appel-lee’s] residence for each visitation.
(Emphasis added.) The decree further provided:
10. That the [appellant] shall be enjoined and restrained from any contact, either by telephone or in person, with any married person with whom she is having a romantic relationship while said children are in her actual custody.
(Emphasis added.)
After appellant gave birth to her out-of-wedlock child, appellee filed a petition for a change of custody. At the conclusion of all the testimony, the trial court made several comments, one of which was the following:
We would not be here today if [appellant] had not continued the relationship with Mr. Hanshaw. It was a major concern for the court and I had to outline several rules that I normally would not do for an adult, such as phone time with him. She was not to introduce him into the kids’ lives while he was married. Having a baby was blatantly wrong and introduced Mr. Hanshaw into their lives. She may not have intended the pregnancy, but it is a fact.
(Emphasis added.) Her comments also included this pronouncement:
I don’t argue about her decision to keep the baby. My problem is that she kept the relationship at the risk of compromising her role as custodial parent. She should have terminated the relationship until he was divorced. Now, she is not only distracted by this long distance illicit relationship, plus she’s got a baby to care for, which adds to her burden, both time-wise and financially. She did claim that Mr. Hanshaw sends money but I don’t see any proof of how much money she really gets from him.
Appellee relies upon these statements by the trial court in his argument that the trial court properly found a change of circumstances allowing a modification of the custody order. Regarding the birth of appellant’s new child, he reasons that “evidence of the [a]ppellant’s immorality is now present in the [ajppellant’s life twenty-four hours a day, seven days a week, and it would be impossible to avoid the minor children of the parties being exposed to that evidence constantly if left in [a]ppellant’s custody.”
Determining whether there has been a change of circumstances that materially affects the children’s best interest requires a full consideration of the circumstances that existed when the last custody order was entered in comparison to the circumstances at the time the change of custody is considered. Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003). A party seeking to modify custody must prove that a material change of circumstances has occurred since the last order of custody or that material facts existed at the time of the decree that were unknown to the court. Id. Custody will not be modified unless it is shown that there are changed conditions demonstrating that a modification is in the best interest of the child. Vo v. Vo, 78 Ark. App. 134, 79 S.W.3d 388 (2002). Neither will custody be changed to punish or reward either parent. See Hobbs v. Hobbs, 75 Ark. App. 186, 55 S.W.3d 331 (2001). Moreover, our courts refuse to modify custody merely because one parent has more resources or income. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003); Malone v. Malone, 4 Ark. App. 366, 631 S.W.2d 318 (1982).
The trial court’s findings in this regard will not be reversed unless they are clearly erroneous. Vo v. Vo, supra. While custody is always modifiable, appellate courts require a more rigid standard for custody modification than for initial custody determinations in order to promote stability and continuity for the children and to discourage repeated litigation of the same issues. Id. There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carries a greater weight than those involving the custody of minor children, and our deference to the trial judge in matters of credibility is correspondingly greater in such cases. Id.
In this case, the original decree anticipated appellant’s move in the original visitation schedule. The decree specifically sets forth an alternative visitation schedule in the event that appellant moved from the Benton County area; therefore, the move from the Benton County area cannot be an event or circumstance unknown to, or unanticipated by, the court at the time that the original decree was entered and cannot qualify as a change of circumstance sufficient to warrant the court’s consideration of a custody modification. Even if the decree had no such provision, the trial court failed to apply the analysis established by Hollandsworth v. Knyzernki, 353 Ark. 470, 109 S.W.3d 653 (2003), as appropriate for relocation cases. See also Benedix v. Romeo, 94 Ark. App. 412, 232 S.W.3d 493 (2006).
Similarly, the appellant’s extramarital sexual relationship with Mr. Hanshaw was known by the trial court at the time of the initial custody decision. Further, the decree anticipates that the relationship would continue except when the children were in appellant’s “actual custody.” Therefore, the continuing sexual relationship between appellant and Mr. Hanshaw cannot constitute a change of circumstances. The trial court’s comments following the hearing on appellee’s motion to modify custody suggest that the reason the original decree proscribed contact between appellant and Mr. Hanshaw in the children’s presence was to prevent appellant from introducing Mr. Hanshaw into the children’s lives while Mr. Hanshaw was married to someone else. The original decree does not articulate this basis for the court’s proscription; yet, the judge specifically found a change of circumstances occurred when the birth of the child introduced Mr. Hanshaw into the children’s lives.
We do not agree that the birth of the child introduced Mr. Hanshaw into the children’s lives. Appellant testified at the hearing that Mr. Hanshaw lives in Ohio. The parties’ oldest child testified that he does not see Mr. Hanshaw, that Mr. Hanshaw is not involved with their lives, and that he guessed that Mr. Hanshaw saw his baby brother, Mr. Hanshaw’s boy, when he and his other siblings were at his dad’s home. It is undisputed that the only time that the children were in the physical presence of Mr. Hanshaw occurred when appellant’s mother took the children to appellant’s mother’s house under the mistaken belief that Mr. Hanshaw had left her house.
Furthermore, appellant testified that, even though she spoke with Mr. Hanshaw every day by phone, she consciously made the effort to talk to him when the children were not present. If he called and one of the children answered, he neither engaged in a conversation nor hung up on the children, but merely asked for their mother. If the children were there, she would tell him that she could not talk at that time. While she may have spoken to him after the school day ended, the children would be outside playing. When asked if she had called Mr. Hanshaw after her daughter was accidently hurt, she said that she did not remember calling him, but if she did, it was because she was very upset. Although appellee complained that appellant had called Mr. Hanshaw seventeen times on that day when the parties’ daughter had been injured, he admitted that all of the calls were while the children were in school and not in appellant’s presence. In addition, appellee agrees that the children are unfamiliar with Mr. Hanshaw and argues on appeal that appellant’s having a child fathered by a man the children do not know is an additional concern this court should consider.
Given this evidence and argument, we hold the trial court erred in finding that appellee proved a material change of circumstances in this case. The trial court entered the original decree awarding custody of the children to appellant fully aware of both appellant’s intention to move from Benton County and the existence of her sexual relationship with Mr. Hanshaw. A decree awarding the custody of a child is final on the conditions then existing and will not be changed afterwards unless on altered conditions since the decree, or on material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the children. Beavers v. Smith, 223 Ark. 43, 264 S.W.2d 617 (1954); Smith v. Smith, 215 Ark. 862, 223 S.W.2d 772 (1949); Kirby v. Kirby, 189 Ark. 937, 75 S.W.2d 817 (1934).
Appellee contends that, while the circuit judge was aware of the relationship at the time the initial custody order was entered, the court could not have known that appellant would place a greater value on continuing the relationship with Mr. Hanshaw than on her relationship with her children. However, nothing in the original decree can be construed as a warning that appellant risked losing custody of her children by continuing her existing relationship with Mr. Hanshaw; to the contrary, the original decree anticipates that the relationship will continue outside the presence of the children. Appellee argues further that “at this point, it is impossible for appellant to keep her affair with a married man, or at least the results of that affair, separate from her children.” Appellant characterizes the “results” as the birth of a child; however, because the trial judge was aware of the sexual relationship between appellant and Mr. Hanshaw when the origi nal decree was entered, such a result could not have been unanticipated and so could not constitute a change of circumstances. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). Appellee further proposes that “[o]ne can try to lessen the impact by appealing to the better angels of our nature and pointing out that [a]ppellant had the baby and is doing the best she can. However right those choices may be, they do not vitiate the fact that [ajppellant made a choice, and that choices have consequences.”
It appears that the choice that appellee contends constitutes a change of circumstances is the choice to continue her pregnancy and to keep the baby. We respond to this argument by stating emphatically that this court will not endorse a finding that suggests, even by implication, that failure to abort a pregnancy constitutes a change of circumstances for the purpose of custody modification.
Accordingly, we reverse and remand.
Bird and Neal, JJ., agree.
We interpret the phrase “while said children are in her actual custody” as used in paragraph 10 of the decree to mean while the children are physically present. | [
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Karen R. Barer, Judge.
Appellant Ricky Wilson brings this one-brief appeal from an order of the Union County Circuit Court granting the motion of his former wife, appellee Teresa Wilson Beckett, to dismiss his motion for contempt citation for Teresa’s denial of visitation that also sought affirmative relief by requesting a more definite visitation schedule. Ricky raises six points on appeal. Finding no error, we affirm.
The parties were divorced by decree of the trial court entered on November 12, 1996. That decree awarded Teresa custody of the parties’ minor child, subject to Ricky’s visitation, and ordered Ricky to pay child support of fifty dollars per week. In December, 2003, the State of Arkansas Office of Child Support Enforcement as Intervenor filed a motion to modify child support and properly served Ricky with the summons. A hearing on this motion was held on July 9, 2004, and an agreed order addressing child support was entered as a result. This order increased Ricky’s child-support obligation to eighty-seven dollars per week, retro active to February 6, 2004. The order found that there were no child-support arrearages as of January 30, 2004.
On the same day as the hearing, July 9, 2004, Ricky filed a motion for a contempt citation alleging that Teresa had remarried about six years earlier and had deprived Ricky of his visitation by moving and refusing to notify him of her address. The motion sought an order directing Teresa to comply with the visitation provisions of the decree, to inform Ricky of her address, and to set out a specific visitation schedule which had not been done in the original decree. The decree merely stated that visitation be “reasonable and seasonable.”
Teresa responded with a special appearance and a counter-motion, alleging that Missouri was the child’s “home state” and requesting dismissal or transfer to a more convenient forum.
On May 17, 2005, Teresa filed a “Motion to Dismiss,” alleging that her current husband had adopted the child by a decree entered by a Missouri court. A certified copy of the Missouri adoption decree was attached as an exhibit to the motion. The Missouri decree contained the findings that Ricky had been personally served with the petition for adoption and failed to respond to the petition. Ricky responded to the motion to dismiss, asserting that the Missouri adoption decree was void because he was never served with process in the Missouri adoption proceedings. He further asserted that the Missouri court lacked jurisdiction as the child’s “home state” under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) because the Arkansas court granted the divorce and retained jurisdiction. He also asserted that Teresa waived the jurisdictional issue by using the Arkansas court to increase his child-support obligation.
At the hearing on the motion to dismiss, Ricky testified that, after the divorce, he was able to exercise visitation until Teresa married and moved to Monroe, Louisiana, where she lived for a period before returning to Arkansas. He stated that, after Teresa returned to Arkansas, he was again able to visit until Teresa moved to two locations in Illinois before moving to Missouri. He said that Missouri authorities contacted him about the payment of child support but would not divulge Teresa’s address to him. Similarly, when he contacted the Arkansas child-support authorities, they also refused to release Teresa’s address. He believed that Teresa knew his address because she obtained it from the child-support authorities. He explained that he did not file suit seeking to enforce his visitation because he did not have the money to do so. He offered that, had he known Teresa’s address, he would have attempted to visit.
Ricky described how he learned of the adoption proceedings when Teresa called him and told him to call her attorney in Missouri. He maintained that he was not properly served with process in the adoption case because the process was sent to his parents’ address and he had not lived at that address in over five years; however, he acknowledged that his mother read the adoption petition to him over the telephone. He asserted that he did not abandon his child, although he conceded that he did not file an answer in the adoption proceedings.
The trial court entered an order dismissing Ricky’s motion for a contempt citation, finding that Teresa and the minor child had lived outside of the State of Arkansas since 1998 and that Ricky has lived in the State of Louisiana for more than five years. Based on these findings, the trial court held that Missouri was the child’s “home state” and that Arkansas was an inconvenient forum for a hearing on Ricky’s motion, a “child-custody determination” within the meaning of the UCCJEA. The trial court did not rule as to whether Ricky was properly served in the adoption proceedings, but noted Ricky’s testimony that service was directed to his parents’ home in Arkansas where he had not lived for over five years. Finally, the trial court found that it could not address Ricky’s visitation request unless the adoption decree was set aside and that the Missouri court was the appropriate forum to address that issue. Because Missouri was an adjacent state, the court found that it would not be prohibitively expensive for Ricky to travel to Missouri to litigate this matter. This appeal followed.
On appeal, Ricky raises six points for reversal: (1) that the trial court erred when it failed to find that the Missouri court lacked jurisdiction over the termination of his parental rights; (2) that the trial court erred when it failed to find that the Missouri adoption decree was invalid for lack of proper service over him; (3) that the trial court erred in finding that Arkansas would be an inconvenient forum; (4) that the trial court erred in finding that it would not be prohibitive for Ricky to go to Missouri to litigate this matter; (5) that the trial court erred in refusing to apply the doctrine of “unclean hands” in this matter; and (6) that the trial court erred in failing to consider Teresa’s violation of the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A (2000). We find the first and third points are interrelated and dispositive; therefore, we do not address the remaining arguments.
In his first point, Ricky argues that the Missouri court lacked jurisdiction because the Arkansas court issued the original divorce decree and Ricky’s motion for citation was pending when the Missouri adoption order was entered. In the third point, he argues that the trial court erred when it found that Arkansas would be an inconvenient forum.
A trial court has discretion to decide whether it should decline to exercise its jurisdiction when there is another appropriate forum under the uniform child custody jurisdiction acts or the PKPA, and this court will reverse the trial court’s decision only if we find an abuse of discretion. See Gray v. Gray, 69 Ark. App. 277, 12 S.W.3d 648 (2000).
This argument is a collateral attack of the adoption decree entered by the Missouri court. In general, a foreign judgment under the full faith and credit clause of the United States Constitution is valid and not subject to collateral attack except for fraud and lack of jurisdiction. Phillips v. Phillips, 224 Ark. 225, 272 S.W.2d 433 (1954). Consistent with this principle, an adoption decree entered in excess of a court’s authority or jurisdiction is void and subject to collateral attack. Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978).
Appellant asked the trial court to find that the Missouri trial court who entered the order of adoption had no authority or jurisdiction to terminate appellant’s parental rights, which it specifically terminated in the judgment of adoption. The trial court responded that appellant’s motion for citation requested a court order related to visitation with the minor child, and therefore, the request was for a “child-custody determination” as defined by the UCCJEA. It further ruled that Missouri was the child’s home state and the appropriate forum for the proceedings. The court also found that Missouri was the proper forum for appellant’s challenge to the adoption order and acknowledged that, while the UCCJEA does not govern an adoption proceeding, appellant would not be able to enforce visitation privileges with the minor child until such time as he takes whatever action is necessary to set aside the judgment of adoption issued by the Missouri court. We find no error in the trial court’s disposition of this case.
We first acknowledge that Missouri has not adopted the UCCJEA. Instead, it retains the Uniform Child Custody Jurisdiction Act (UCCJA). However, the analysis under the PKPA, the UCCJA, and the UCCJEA are the same on the facts presented in this case as all three acts give priority to the child’s “home state.” Our supreme court has stated that, under the UCCJA, the predecessor of the UCCJEA, child-custody jurisdiction is a matter of subject-matter jurisdiction. Moore v. Richardson, 332 Ark. 255, 964 S.W.2d 377 (1998). The UCCJEA is the exclusive method for determining the proper forum in child-custody proceedings involving other jurisdictions. Greenhough v. Goforth, 354 Ark. 502, 126 S.W.3d 345 (2003); Arkansas Dep’t of Human Servs. v. Cox, 349 Ark. 205, 82 S.W.3d 806 (2002). Where the UCCJEA and PKPA conflict, the federal PKPA controls. Cox, supra.
Both the UCCJEA and the PKPA define “home state” in part as “the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child-custody proceeding.” 28 U.S.C. § 1738A(b)(4); Ark. Code Ann. § 9-19-102(7) (Repl. 2002). Under Ark. Code Ann. § 9-19-202(a)(2) (Repl. 2002), an Arkansas court making an initial custody determination has exclusive, continuing jurisdiction until a court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state. The trial court in this case found, as did the Missouri court in the adoption proceeding, that Missouri was the home state of the child. Ricky does not challenge this finding. This finding terminated Arkansas’s exclusive, continuing jurisdiction under the UC-CJEA and PKPA.
Ricky also argues that Arkansas retained jurisdiction because he filed his motion for contempt in Arkansas prior to the adoption petition being filed in Missouri. The trial court in this case correctly identified the issue as whether Arkansas had exclusive continuing jurisdiction. In reaching that determination, the trial court recognized that appellant’s motion for citation not only sought enforcement of the trial court’s original order, but also requested a court order establishing a more specific visitation schedule with the minor child of the parties.
The trial court found that pursuant to Arkansas Code Annotated section 9-19-202, Arkansas would be an inconvenient forum to address the visitation issues in that there was no evidence of domestic violence, the child had resided outside the State of Arkansas for a period of over five years and Missouri, the home state of the child, was an adjoining State so it would not be prohibitive for appellant to pursue whatever remedies he may have in that forum. The trial court further found that, given the nature and location of the evidence required to resolve the pending litigation, the State of Missouri would be the best forum to address visitation.
In reaching its decision, the trial court did not foreclose future enforcement of the court’s order; however, it specifically found that Missouri was the appropriate forum for appellant’s action to set aside the judgment of adoption issued by the Missouri court. Given that Missouri was the child’s home state, we cannot say that the trial court erred in refusing to exercise its jurisdiction to enforce its court order until appellant’s challenge to the adoption was resolved. See Snisky v. Whisenhunt, 44 Ark. App. 13, 864 S.W.2d 875 (1993) (holding that court’s refusal of jurisdiction pursuant to uniform custody acts over custody matter does not affect inherent authority of court to enforce its order).
On the facts of this case, we find no error with the trial court’s findings that Missouri was the child’s home state and that Arkansas was an inconvenient forum to challenge the validity of the Missouri judgment. Accordingly, we affirm.
Affirmed.
Pittman, C.J., and Robbins, J., agree.
Teresa did not appear at the hearing. | [
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John B. Robbins, Judge.
Appellant Jonathan B. Gonder appeals his convictions for possession of controlled substances (marijuana and cocaine) with intent to deliver. This appeal follows his entry of a conditional guilty plea after the trial court denied his motion to suppress. The State argues that we do not have jurisdiction to consider appellant’s appeal because appellant’s conditional guilty plea does not conform with Ark. R. Crim. P. 24.3(b) (2005), and asks that we dismiss the appeal. We do not dismiss the appeal. However, upon consideration of the merits, we affirm appellant’s convictions.
Whether a defendant has complied with Rule 24.3(b) is a jurisdictional question. See Ray v. State, 328 Ark. 176, 941 S.W.2d 427 (1997). The State filed a motion to dismiss for lack of jurisdiction, prior to this appeal being submitted to our court, which we denied on January 11, 2006. Upon the State’s reassertion of its motion to dismiss, we again consider the jurisdictional question.
The general rule is that when a defendant pleads guilty to a charge, he or she waives the right to appeal that conviction. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998). For relevant purposes before us, only a conditional plea pursuant to Rule 24.3(b) enables a defendant to retain the right to appeal an adverse suppression ruling. Ark. R. App. P.-Crim. 1(a) (2005); Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999). Rule 24.3(b) states:
With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
Our supreme court has interpreted Rule 24.3(b) to require strict compliance with the requirement that the right to appeal be reserved in writing. Barnett v. State, supra. This is so even when there has been an attempt to enter a conditional plea at the trial court level. Ray v. State, supra. In addition, the writing must be contemporaneous with the defendant reserving his or her right to appeal. Tabor v. State, 326 Ark. 51, 930 S.W.2d 319 (1996). We also look for an indication that the conditional plea was entered with the approval of the trial court and the consent of the prosecuting attorney. Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993).
In this instance, the transcript reveals the following pertinent facts. After a search for and seizure of marijuana and cocaine from appellant’s home in March 2002, his attorney filed a motion to suppress, which was ultimately denied in December 2002. In December 2004, the prosecution and defense entered into plea negotiations. On December 9, 2004, a document was filed, entitled “Report of Plea Negotiations,” which reflected that for the two drug charges, the prosecutor was recommending two ten-year sentences, for appellant to forfeit any seized property, and for appellant “to remain free on bond through the pendency of his appeal of the Court’s denial of his Motion to Suppress Evidence.” The opening paragraph of the document reflected that both the State and the defendant and his counsel had agreed to dispose of this case by a “plea of guilty CONDITIONAL” subject to the approval of the trial court. This document was signed by the prosecuting attorney, appellant’s attorney, and appellant.
On December 14, 2004, appellant formally entered his negotiated plea of guilty in open court, with the trial judge, the prosecutor, defense counsel, and appellant present. The trial judge announced the crimes with which appellant had been charged and the range of punishments for each crime, asked appellant if he was satisfied with his representation, and verified that appellant was knowingly and intelligently waiving his right to a jury trial. The prosecutor asked the trial judge if she had a copy of the plea; the trial judge responded affirmatively. The trial judge recited verbatim the “deal” contained in the Report of Plea Negotiations, including that appellant would be free pending his appeal of the suppression issue, and she asked appellant if he had been promised anything else in order to acquire a guilty plea from him. Appellant responded, “no.” After reading the specific details of the plea negotiation from the Report, the trial judge asked if that was his understanding of the plea negotiation. Appellant affirmed that it was and that he intended to plead guilty in line with that offer. The judge asked defense counsel if he concurred in the plea agreement; defense counsel said that he did. The judge accepted the recommendation of the State, sentenced appellant to concurrent ten-year sentences, and reaffirmed to appellant that he would be free during the appeal of his motion to suppress.
A judgment containing the two convictions was signed by the trial judge and filed on December 28, 2004, reflecting the sentences imposed and that each was a “negotiated plea of guilty (CONDITIONAL).” The judgment also recited:
«SPECIAL CONDITIONS: DEFENDANT SHALL FORFEIT ALL PROPERTY SEIZED. DEFENDANT SHALL REMAIN FREE ON BOND THROUGH THE PENDENCY OF HIS APPEAL OF THE COURT’S DENIAL OF MOTION TO SUPPRESS EVIDENCE.
Appellant filed a timely notice of appeal on January 13, 2005, appealing the denial of his motion to suppress and the judgment of convictions.
We hold that this conditional plea is sufficient to confer appellate jurisdiction in our court. Therefore, we deny the State’s second motion to dismiss. The Report of Plea Negotiations reflected what was agreed between the State and appellant; it was denoted a conditional guilty plea specifically noting that appellant would be free during his appeal of the suppression issue; and it was in writing, signed by the prosecutor, defense counsel, and appellant. This Report was provided to the trial court for the actual entry of the plea on December 14, 2004. The contents of the Report were recited in open court by the trial court and agreed to by appellant and the State, as well as by the trial court by verbal assent. The judgment that followed days later, signed by the trial judge and filed of record, reflected without ambiguity that these sentences were conditional negotiated pleas, with capitalized type emphasizing that appellant would be free pending the appeal of the motion to suppress. We are convinced that the Report was a sufficient writing to memorialize appellant’s intent to enter a conditional plea.
Further, we are convinced that because the Report was presented in open court at the plea hearing and was accepted by the trial court in total, this rendered it contemporaneous within the case law construing Rule 24.3(b). Even assuming that the judgment that was filed two weeks later would not be considered “contemporaneous” to the plea, the judgment does nothing but reinforce what occurred at the plea hearing where the Report was accepted by the trial court. Compare Hill v. State, 81 Ark. App. 178, 100 S.W.3d 84 (2003). On these facts, we hold that there was compliance with Ark. R. Crim. P. 24.3 establishing appellate jurisdiction.
This brings us to the merits of the appeal. Appellant contends that the trial court clearly erred in not granting his motion to suppress. We disagree. On appeal from the denial of a motion to suppress, we conduct a de novo review based upon the totality of the circumstances, reviewing findings of historical fact for clear error, giving due weight to inferences drawn by the trial court. See Thornton v. State, 85 Ark. App. 31, 144 S.W.3d 766 (2004). Thus, the trial court’s ruling will not be reversed unless it is clearly erroneous. See id. In this instance, the search of appellant’s house came as the result of the police obtaining consent to enter and then searching the premises. There is a presumption of unreasonableness regarding warrantless entry into a home, but it may be overcome if the State obtains consent from the homeowner. See Carson v. State, 363 Ark. 158, 211 S.W.3d 527 (2005); Ark. R. Crim. P. 11.1. The State bears the burden to demonstrate clear and positive testimony that consent was freely and voluntarily given. See Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002). Consent must not be the product of express or implied coercion or duress. Russey v. State, 336 Ark. 401, 985 S.W.2d 316 (1999).
With these statements of the law, we proceed to examine the interaction between appellant and the police on the night of the search. Appellant’s home was under surveillance by the Pine Bluff Police Department when an officer observed a vehicle leave the residence. Upon following that vehicle, the police tried to initiate a stop, but the driver fled the vehicle, abandoning a one-pound bag of marijuana in plain view inside the vehicle. Close in time to that stop, other officers stopped another vehicle that had left the residence; appellant’s wife was driving.
Officer Whitfield told appellant’s wife that he wanted to follow her back to their house to talk to appellant about drugs being in their house. The wife was cooperative and complied, and they drove back to the Gonder residence; it was around midnight. Officer Whitfield said he approached the door, knocked, and appellant came to the door. Appellant’s wife was with Officer Whitfield at the time. The officer asked to come in, and appellant let him. Officer Whitfield said he immediately smelled a strong odor of marijuana when the door was opened. He told appellant that he had just stopped a car that came from appellant’s house; that there was a pound of marijuana in the car; and that he suspected there were more drugs in appellant’s house.
Upon entry, the officer saw two men sitting in the living room, and one had a bag of marijuana in plain view; there was also a roach clip in plain view. Appellant at first said that the young man, whose car was found with the marijuana in it, had set him up. Officer Whitfield said he asked appellant for consent to search the house, but if none were given and appellant wanted him to leave, he would leave and obtain a search warrant. Appellant asked the officer to come into the kitchen to speak in private, and appellant expressed concern about his wife and children. Officer Whitfield told appellant that the smell of marijuana smoke was already in the house, and that he should not have his children there if he was going to sell or smoke the drug; appellant apologized to the officer for that. When appellant asked the officer to let his wife and kids go, Officer Whitfield assured appellant that he was only there regarding other drugs that might be in the house. After some discussion with the officer, appellant began taking responsibility for the marijuana that the young man had in the living room. The officer verbally Mirandized appellant. The officer added that if appellant was cooperative and gave consent to search, then neither appellant or his family would be taken into custody that night. The officer said that when he offered to leave and get a search warrant, appellant told him to come back and talk again, whereupon he agreed to the search. At 12:45 a.m., appellant signed the consent form to search. Following that, appellant said he did not want his house “torn up” like it was the last time his house was searched. Thereupon, he reached up to pull the cord attached to the disappearing stairway leading to the attic, which was where appellant kept approximately eighteen pounds of marijuana and a small amount of cocaine.
Officer Whitfield agreed that he and appellant had a long conversation inside the house. However, he stated that he never was confrontational, nor did he ever state that appellant was legally obligated to cooperate, having more than once offered to leave to get a warrant. The officer denied ever threatening appellant or his family in order to get consent, and he confirmed that no one was taken to jail that night.
The State entered into evidence the “Consent To Search” form, signed by appellant, which delineated appellant’s constitutional rights, specifically noting appellant’s right to refuse to give consent and to revoke consent and stop the search at any time, and stating affirmatively that permission was given “voluntarily and without threats, coercion or promises from any agent of the City of Pine Bluff Police Department.”
Mrs. Gonder testified in contradiction to the officer, stating that she essentially felt bullied to return to the house with officers following her. She also said that she saw Officer Whitfield push open their door and enter against her wishes, and also against her husband’s wishes when he saw the officer coming inside. She recalled that she and her husband repeatedly told the officer to leave, but he would not. She said the officer threatened that she and the two men in the house would be going to jail, and their kids would be taken away, if appellant did not sign a consent. She agreed that her husband signed the consent, but that he was forced by the threats. Appellant’s testimony mirrored his wife’s.
Appellant argues on appeal that there were no exigent circumstances that would permit entry and search of the house pursuant to Ark. R. Crim. P. 12.1, and that the consent was obtained under duress. Therefore, appellant contends that the motion to suppress was denied in error. We agree that Arkansas Rule of Criminal Procedure 12.1 would not be a valid basis to uphold the search in this instance because there was no emergency relating to bodily harm or destruction of evidence that would create a warrant exception. Indeed, the State did not elect to argue this Rule as a basis to support the search. Instead, we focus on the second argument asserted, which is whether the State carried its burden to demonstrate that consent to search was freely and voluntarily given.
Appellant agrees that he gave both verbal and written consent to search, but he argues that there is no corroborating evidence of the officer’s testimony about what led to the consent being given. Because individuals have a high expectation of privacy in their homes, our courts require voluntary consent absent other grounds to effectuate a warrantless search of the home. See Payton v. New York, 445 U.S. 573 (1979). Indeed, physical intrusion into the privacy of a person’s residence absent a warrant is the primary evil that the Fourth Amendment seeks to eradicate. See United States v. Miller, 933 F. Supp. 501 (M.D. N.C. 1996). Fie argues that his and his wife’s testimony demonstrate that they were bullied and that appellant gave consent only after threats of incarceration and of taking the children from the home. This argument focuses on credibility determinations that we are not at liberty to disturb on appeal. Bogard v. State, 88 Ark. App. 214, 197 S.W.3d 1 (2004). The validity of consent is a fact question determined by the totality of the circumstances. Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002). Based upon the testimony presented by the officer, which the trial court was entitled to believe, we cannot say that the trial court’s denial of the motion to suppress was clearly erroneous.
Affirmed.
Pittman, C.J., and Baker, J., agree.
Appellant does not argue on appeal that the initial entry into the doorway of the house was constitutionally infirm. Instead, his argument focuses on the acquisition of verbal and written consent inside the house. Therefore, we do not address or offer any opinion on the legality of the initial entry into the house. | [
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John B. Robbins, Judge.
Appellant Terrell Jamaal Travis was convicted by a jury of possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, and possession of drug paraphernalia. He was sentenced to fifty-five years in prison. On appeal, Mr. Travis argues that the trial court erred in denying his motion to suppress the incriminating evidence because the evidence was discovered as the result of an illegal search of the vehicle he was driving. We affirm.
Officer Olen Craig testified for the State at the suppression hearing. Officer Craig stated that he was patrolling the eastbound lanes of Interstate 40 in Crawford County in the early morning hours of May 12, 2004. He was driving behind a 2004 Ford Taurus with California tags when he observed the Taurus cross the center line twice. As a result, Officer Craig decided to make a traffic stop, which was initiated at 2:05 a.m.
Upon stopping the vehicle, Officer Craig found that Mr. Travis was the driver and a man named Meldanado Hankins was in the front passenger seat. Officer Craig stated that when he approached, Mr. Travis was holding a cell phone in his lap and would not look at him. When Officer Craig asked for license and registration, Mr. Travis gave him his driver’s license and a rental agreement. Officer Craig returned to his patrol car and called for background checks, which revealed that Mr. Travis had a prior arrest involving possession of a firearm, and that Mr. Hankins had been arrested for an unspecified sexual offense.
The rental agreement listed the lessee as Makala Racobs, and did not pertain to the 2004 Taurus. When Officer Craig returned to the vehicle and informed Mr. Travis that he presented the wrong rental agreement, Mr. Travis produced another rental agreement. This contract did pertain to the 2004 Taurus, and listed Makala Racobs as the lessee with no other authorized drivers.
Officer Craig went back to his patrol unit at about 2:13 a.m. and called Officer Michael Bowman for backup assistance, explaining that he had a “quirky feeling.” Officer Craig then proceeded back to the Taurus, where he instructed Mr. Travis to exit the vehicle and join him in the patrol car. During their conversation, Mr. Travis stated that he was traveling to Jacksonville, North Carolina, and that his sister-in-law had rented the car for him for insurance purposes because he was under twenty-five years of age. Officer Craig asked Mr. Travis if he had ever been arrested before, and Mr. Travis acknowledged a prior misde meanor arrest. Officer Craig asked if he could search the car, and after giving evasive answers Mr. Travis ultimately said “no.”
Officer Bowman arrived with a drug-detection canine at about 2:18 a.m. Mr. Hankins was removed from the car, and when asked about their destination he stated that they were headed to Jacksonville, North Carolina. Officer Bowman walked the dog around the car, and the canine sniff was concluded at approximately 2:21 a.m. During the procedure, the dog alerted on the trunk of the car. As a result, the officers searched the trunk and found 2.2 pounds of cocaine and 3.9 pounds of marijuana.
Officer Craig testified that during the stop he suspected that Mr. Travis was hauling drugs due to his extreme nervousness and evasive answers as to whether he would consent to a search. Officer Craig further found it suspicious that there were two rental agreements, and that the valid agreement did not authorize Mr. Travis as a driver and indicated that the car was due back in California on the following day. Officer Craig stated that he did not issue a citation for crossing the center line because of his suspicion of more serious criminal activity. Officer Craig acknowledged that he did not have any information that the car had been stolen, and the fact that the occupants of the car had prior arrests did not factor in his decision to detain them.
In denying Mr. Travis’s motion to suppress, the trial court stated:
The stop was 15 minutes by my calculations. The court finds that there was no violation of 3.1 or 3.2 as far as the mies are concerned. The appellate courts have gone and have sanctioned 20 minutes as being totally unreasonable [sic]. I find it to be well within that time. The court finds that the stop was lawful because the vehicle was across the center line twice, I believe. The court also finds that the officer testified that the driver was nervous, that the rental agreement was of a third party, the third party was not present in the car, and the defendants were not authorized users of the car. The officer also testified that there were two rental agreements, that the driver would not look up and was evasive in answering the questions. The contract was due back on the 13th and this was early morning on the 12th and the car was going in the other direction. The officer later testified that it caused him problems that the driver was on the cell phone when he walked up. I believed this has been identified in other cases, as far as in drag situations, that other vehicles are driving in tandem and in commu nication by cell phones. . . . The State is on very solid ground here based on them not being authorized drivers under the contract to this vehicle. They had a right to confiscate the car and hold it until it was determined that someone had a right to drive the vehicle any further. . . . The nervousness, the refusal to look up, evasive answers, the contract being due the next day, two rentals in the car, and the renter not being present in the car. Your motion to suppress will be denied for those reasons.
For reversal, Mr. Travis argues that the contraband should have been suppressed because the search violated his Fourth Amendment right against unreasonable searches and seizures and Rule 3.1 of the Arkansas Rules of Criminal Procedure. Rule 3.1 provides:
A law enforcement officer lawfully present in any place may in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this mle may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.
In Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001), our supreme court recognized that as part of a valid traffic stop, a police officer may detain a traffic offender while he completes certain routine tasks, but that such detention is unrelated to a Rule 3.1 detention. Mr. Travis argues in this case that the routine tasks associated with the traffic violation were completed long before the canine alerted to the presence of drugs, and thus that the continued detention would only be justified if there was reasonable suspicion under Rule 3.1. He further contends that there was no such reasonable suspicion under the facts of this case.
While there was evidence that Mr. Travis exhibited nervousness during the stop, he cites Lilley v. State, 362 Ark. 436, 208 S.W.3d 785 (2005), where the supreme court held that nervous ness alone does not constitute reasonable suspicion of criminal activity and grounds for detention. Mr. Travis also cites U.S. v. Beck, 140 F.3d 1129 (8th Cir. 1998), where the Eighth Circuit Court of Appeals stated that there was nothing inherently suspicious about Mr. Beck’s use of a rental vehicle, even though rented by a third person, to travel. The circumstances of this case showed that Mr. Travis was nervous and was traveling in a rental car that had been rented by a third person and was due back in California the next day. Mr. Travis submits that these factors did not give rise to reasonable suspicion of any drug-related activity. In United States v. Boyce, 351 F.2d 1102 (11th Cir. 2003), the appeals court stated that in deciding whether certain factors give rise to reasonable suspicion of criminal activity, the factors together must serve to eliminate a substantial portion of innocent travelers before the requirement of reasonable suspicion will be satisfied. Mr. Travis argues that the factors in this case were consistent with innocent travel, that Officer Craig’s decision to detain him was merely based on a hunch, and that the trial court erred in denying his motion to suppress.
The State first contends that we should affirm without reaching the merits of Mr. Travis’s argument because he failed in his burden of establishing that he had any standing to contest the search. We agree.
In Ramage v. State, 61 Ark. App. 174, 966 S.W.2d 267 (1998), this court set out the following guidelines for determining standing to contest a Fourth Amendment search:
Fourth Amendment rights against unreasonable searches and seizures are personal in nature. McCoy u State, 325 Ark. 155, 925 S.W.2d 391 (1996). Thus, a defendant must have standing before he can challenge a search on Fourth Amendment grounds. Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997). The pertinent inquiry regarding standing to challenge a search is whether the defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. McCoy v. State, supra; Littlepage p. State, 314 Ark. 361, 863 S.W.2d 276 (1993). It is well settled that the defendant, as the proponent of a motion to suppress, bears the burden of establishing that his Fourth Amendment rights have been violated. McCoy v. State, supra; Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995). A person’s Fourth Amendment rights are not violated by the introduction of damaging evidence secured by the search of a third person’s premises or property. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992); Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997). A defendant has no standing to question the search of a vehicle unless he can show that he owns the vehicle or that he gained possession of it from the owner or someone else who had authority to grant possession. McCoy v. State, supra-, Littlepage v. State, supra, State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992).
Id. at 176-77, 966 S.W.2d at 268-69.
In holding that Mr. Travis lacked standing in the present case, we are guided by our supreme court’s decision in Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). In that case the appellant was driving a rental car that had been rented to a third person who was the only authorized driver in the rental agreement. The vehicle was stopped and searched and the police seized illegal drugs and other contraband. Mr. Littlepage argued on appeal that the trial court erred in denying his motion to suppress, but the supreme court declined to reach the merits of his argument based on the following analysis:
In this matter, Littlepage bore the burden of proving not only that the search of the car he drove was illegal, but also that he had a legitimate expectation of privacy in that car. The proof revealed that the car Littlepage was driving was rented to Rebecca Jones, who was not present at the time of the arrest. Ms. Jones was the only authorized driver in the rental agreement. Littlepage claimed that Ms.Jones had rented the car for him in Dallas for his use when his own car had broken down, but there was no showing that this assertion had any validity. Besides, the rental agreement authorizing Ms. Jones to drive the car had expired two days prior to Littlepage’s traffic stop and arrest. Clearly, Littlepage failed to establish his expectation of privacy in the searched automobile. Accordingly, we conclude that Litdepage had no standing to challenge the officer’s search as unconstitutional. Because Littlepage had no expectation of privacy in the car, the issue of whether or not this was a pretextual search is of no moment.
Littlepage v. State, 314 Ark. at 369, 863 S.W.2d at 280 (citations omitted).
The circumstances in the case at bar are not materially distinguishable from those in Littlepage v. State, supra. As in that case, Mr. Travis was driving a car rented to a third party who was not present, and he was not listed as an authorized driver. And other than the officer’s testimony as to Mr. Travis’s explanation of how he came into possession of the car, Mr. Travis offered no proof on the issue at the suppression hearing. While the rental agreement in Littlepage had expired and the one in the present case was valid for one more day, we read Littlepage to say that the driver lacked standing whether of not the rental contract had expired. Because Mr. Travis failed to prove that he had an expectation of privacy in the vehicle he was driving, we conclude that he failed in his burden to establish standing to challenge the search. Therefore, we do not reach the merits of his argument on appeal.
Affirmed.
Hart and Glover, JJ., agree. | [
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Ernie E. Wright, Special Judge.
Appellant, Phyllis Brown, and appellee, Billy Brown, were divorced by decree of the Crawford County Chancery Court June 20, 1989, after over thirty-seven years of marriage. They agreed on the settlement of all property rights except the division of appellee’s military retirement benefits, 90 percent of which were earned during the marriage. The remaining 10 percent of the retirement benefits were attributable to appellee’s military service prior to the marriage. Appellee had been retired and receiving retirement benefits some years prior to the divorce.
In August 1990, appellant filed a motion for contempt against the appellee for his failure to implement payments to her of increases in the military retirement benefits by cost of living adjustments occurring subsequent to the divorce decree. The appellee filed a response denying that appellant was entitled to share in cost of living increases occurring after the divorce.
The relevant provision of the divorce decree states:
The Court finds that the Defendant is entitled to one-half of the gross retirement for that period of time in which the parties were married said period constituting 90 % of the retirement benefits. The Court finds that the Defendant is entitled to one-half of 90% of the Plaintiffs military retirement. Each party shall be responsible for the respective taxes which may be attributable to their portion of the retirement benefits. The Plaintiff is ordered and directed to forthwith contact the Naval Finance Center in Cleveland, Ohio for the purpose of determining the most expedient manner to impliment [sic] the Defendant’s direct receipt of these funds.
The decree specifically provided appellee was not required to maintain the appellant on the survivors benefit plan and there is no issue before us in that regard. The appellee implemented direct payment by the Navy to appellant beginning with the October 1989 payment, and the disbursement to appellant was based on the gross retirement benefits of appellee in effect in 1989. In January 1990, the appellee routinely received a monthly increase based on the cost of living adjustment and apparently the benefits will be subject to adjustment in January of each year. There was an increase in appellee’s benefits in January 1990, and appellee has taken no steps to implement the payment of 90 percent of one-half of that increase to appellant.
There were other issues raised by each party relating to implementing the property settiement in keeping with the divorce decree, but all other issues were settled by the parties except appellant’s claim to a share of the increased COLA benefits payable after October 1990. Incident to settlement of property rights under the divorce decree, appellant waived her rights to any share of the COLA increases through October 1990.
At a hearing on October 16, 1990, the issue was argued by counsel and subsequently letters were submitted to the trial court by counsel and filed in the record.
On April 30, 1991, the court entered an order finding that appellant was not entitled to share in the increases or decreases in appellee’s Navy retirement payable after the date of the decree of divorce.
It is undisputed that appellee’s military retirement benefits were marital property within the meaning of Ark. Code Ann. § 9-12-315 (Repl. 1991), except as to the 10 percent which he had earned prior to the marriage. There is no indication in the decree of divorce that the retirement benefits were to be divided on some equitable basis other than one-half of the portion earned during the marriage as contemplated by the statute. We find no valid reason for holding that the award of one-half of 90 percent of the gross retirement benefits does not carry with it the same portion of any COLA increases or decreases that occur subsequent to the divorce. The Arkansas appellate courts have not previously had occasion to pass on this specific issue. However, a number of cases from other states have addressed the issue and have held that a spouse upon divorce is entitled to share in COLA adjustments in retirement benefits applicable to the percentage of retirement benefits awarded to the spouse in the divorce decree. See Neese v. Neese, 669 S.W.2d 388 (Tex. App. 11 Dist. 1984), Thorpe v. Thorpe, 123 Wis.2d 424, 367 N.W.2d 233 (Wis. App. 1985), In Re the Marriage of Bocanegra, 58 Wash. App. 271, 792 P.2d 1263 (Wash. App. 1990) and In re the Marriage of Haugh, 58 Wash. App. 1, 790 P.2d 1266 (Wash. App. 1990).
From a review of our statute governing the division of marital property upon divorce, the divorce decree, and the above cases, we conclude that appellant is entitled to share in the COLA adjustments. Appellant is entitled to one-half of 90 percent of COLA adjustments incident to appellee’s retirement pay made and to be made on and after November 1, 1990.
Reversed and remanded.
Danielson, J., agrees.
Jennings, J., concurs in the result. | [
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James R. Cooper, Judge.
The parties in this chancery case were divorced in 1989, and the appellant, Mary Clark, was awarded custody of their minor twin daughters. Prior to the fall school semester of 1990, the appellant obtained permission from the Arkansas Department of Education to provide home schooling for her children. In response to a petition filed by the appellee, the chancellor entered a temporary order directing the appellant to keep the parties’ daughters enrolled and in attendance at the Kingston, Arkansas, public schools and to refrain from making changes in the children’s school enrollment. After a hearing on the merits, the chancellor entered a permanent order denying the appellant the right to remove the children from public school in order to provide them with home schooling. From that decision, comes this appeal.
The appellant contends that the chancellor erred in construing the home schooling statute, Ark. Code Ann. § 6-15-503 (Supp. 1991), to require that both parents must consent to a home school education. She also contends the chancellor erred in finding that she was not qualified to educate her children under § 6-15-503. It is unnecessary, however, for this court to address these issues, because the chancellor did not make these findings that the appellant challenges. The chancellor did find, however, that, at this time, it was not in the children’s best interest to be withdrawn from public schools in order to be home schooled by the appellant. We cannot say this finding is clearly against the preponderance of the evidenced.
Minors are wards of the chancery court, and it is the duty of those courts to make all orders that will properly safeguard their rights. Jones v. Jones, 13 Ark. App. 102, 105, 680 S.W.2d 118, 120, (1984). The prime concern and controlling factor is the best interest of the child, and the court in its sound discretion will look into the peculiar circumstances of each case and act as the welfare of the child appears to require. Id. at 107, 680 S.W.2d at 121. An agreement entered into by a husband and wife relating to the custody of their minor children does not affect the right of a court of equity to award the custody of the children and to make reasonable provisions for their support and education. Penny v. Penny, 210 Ark. 16, 18, 193 S.W.2d 811, 812 (1946); Daily v. Daily, 175 Ark. 161, 164, 298 S.W. 1012, 1013 (1927). Moreover, an award of custody to one parent does not lessen the non-custodial parent’s responsibility relative to the children nor does it affect his rights as a parent to provide guidance and to participate in decisions affecting the welfare of the children. See Provin v. Provin, 264 Ark. 551, 555, 572 S.W.2d 853, 855 (1978).
The appellant testified that she is a chiropractor and works three days a week, Tuesday, Thursday and Saturday, and the other days, she stays at home. She testified that, prior to the 1990 school year, she was approved as a home school teacher by the Arkansas Department of Education and educated her children at home for a brief period. She testified that, on the days that she was home, the children worked all day until bedtime with a lot of breaks. She stated that, on the days she works in her office, the girls have a room where they can do things such as their math papers and writing. She stated that they can also go to the library to research social studies projects and things of that nature. She stated that she wants to home school the children because she feels she can supply a better education in the areas of social studies, history, geography, health, and anatomy than is being offered in the public school system. She also testified that she is concerned over the two and one-half hours the children spend on the school bus going to and from school each day. She testified that home schooling would give her more flexibility and she would not have to worry about getting the children to school when the weather is bad. She testified that, although she has had no special training in elementary education, she feels that she could provide a better education than they currently receive.
The appellant admitted that, if she were allowed to home school the children, it would alter the appellee’s visitation with them. Currently, when the children have a Monday school holiday and it is the appellee’s weekend for visitation, he is allowed to keep the children through the weekend until Tuesday morning. The appellant testified that, if she is allowed to home school the children, she would need the children to be brought home on Monday.
The appellee objected to the children being withdrawn from public school. He testified that, since the children began attending school, they have changed schools five times.' He stated he did not believe the continuity of their education could be maintained by home schooling and that he believed home schooling would interfere with his children’s social interaction with their peers. He also testified that the children’s grades have been low and their report cards indicate part of the problem is due to their number of absences. He stated that, although he had no objection to the appellant home schooling the children in addition to their attending public school, he felt the children’s primary educational environment should be public school.
The evidence also demonstrated that the appellee actively participated in his children’s education. He testified that, during the current school year, when the appellant temporarily withdrew the children from school in order to provide their education at home, the children missed more than the allowable amount of days, but stated he was able to enroll them back in public school after he explained their situation to their principal and the superintendent of schools and promised to help the children catch up with their classmates. He testified that he had conferences with their teachers, collected past homework assignments, and worked with the children each weekend until they were current with their classmates. He also testified that home schooling would adversely affect his visitation with the children. He testified that, currently, he can visit their school, check on their progress, and have lunch with them. He testified that the previous year, he was a “class mother.”
In restraining the appellant from withdrawing the children from public school, the chancellor recognized that the appellant is the custodial parent and therefore has a certain degree of latitude in decisions involving the children. Notwithstanding this fact, he went on to state that, because the decision to remove the children from the structured school system is so important and could drastically affect their entire future, in this situation, it should be a unanimous decision of both parents. He further noted that the appellant did not have a structured educational environment and that the work the children would be performing during the days that the appellant works would not provide the basic fundamental educational requirements that the state requires. The chancellor concluded that it was in the best interest of the children for them to remain in a structured school environment. We cannot say the chancellor’s finding in this regard was clearly erroneous or clearly against a preponderance of the evidence.
The chancellor’s findings in a child custody case will not be reversed unless they are clearly against the preponderance of the evidence, and since the preponderance of the evidence turns largely on the credibility of the witnesses, the appellate court defers to the superior position of the chancellor. Rush v. Wallace, 23 Ark. App. 61, 70, 742 S.W.2d 952, 957 (1988). Especially in child custody cases, a heavier burden is cast upon the chancellor to utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony, and the children’s best interest. Calhoun v. Calhoun, 3 Ark. App. 270, 273, 625 S.W.2d 545, 547 (1981).
Affirmed
Jennings and Mayfield, JJ., agree. | [
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Elizabeth W. Danielson, Judge.
Appellant, Charles Belue, and appellee, Beverly Belue, were divorced in December 1978. At that time, appellee was awarded custody of the parties’ minor daughter. Appellant had been injured in Vietnam and was a paraplegic. Because of appellant’s injuries, the minor child received monthly benefits from the Veterans’ Administration and the Social Security Administration. At the time of the divorce, appellant was ordered to insure that the child continued to receive her direct benefits, but appellant was not ordered to pay separate child support.
In December 1988, appellee agreed to transfer custody of the parties’ daughter to appellant. In December 1990, appellant asked for child support from appellee and appellee counterclaimed that custody should be returned to her and that appellant should be ordered to pay child support.
The chancellor entered an order on March 22,1991, finding that the best interests of the child would be served by returning custody to appellee; that the child’s expenses, as well as appellant’s income, had substantially increased; and that, based on such a finding of material changes in circumstances, the appellant should pay to appellee $640.00 per month child support.
Subsequently, appellee filed a petition for contempt, citing appellant’s failure to pay child support. On July 3, 1991, appellant filed a petition for modification of child support, citing his recent loss of employment and the fact that his only source of income was his medical disability benefits received from the Veterans’ Administration.
A hearing was held on July 18, 1991, and the chancellor reduced appellant’s child support obligation from $640.00 to $365.00 per month, noting that appellant’s only income was disability benefits from the Veterans’ Administration in the sum of $2,375.00 per month. The court noted, however, that appellant would be receiving an additional $900.00 per month, beginning August 1, 1991, as a result of retirement benefits and that child support would be increased to $430.00 per month at that time. The court pointed out that it did not consider the $900.00 gross amount per month retirement income but the net amount of $675.00 per month that the appellant would actually receive after taxes and other appropriate deductions. The chancellor therefore set the prospective increase in child support based upon appellant’s expected net monthly income of $3,025.00 as of August 1, 1991.
On appeal, appellant, Charles Belue, urges us to find that the chancellor erred in considering his Veterans’ Administration benefits as income for the purpose of determining his appropriate child support obligation. Appellant argues that the court should have only considered appellant’s retirement income.
Appellant points out that this court, in Waldon v. Waldon, 34 Ark. App. 118, 121, 806 S.W.2d 387, 389 (1991), adopted the position that weekly take-home pay, as it relates to the Family Support Chart, refers to the definition of income in the federal income tax laws. Appellant therefore contends the chancellor erred in considering Veterans’ Administration benefits in determining the appropriate amount of child support because such benefits are not considered income pursuant to the federal income tax laws.
In the supreme court’s per curiam In Re: Guidelines for Child Support Enforcement, 301 Ark. 627, 784 S.W.2d 589 (1990), the court stated that factors which may be considered in determining appropriate amounts of child support shall include, among other things, clothing, accustomed standard of living, recreation, educational expenses, and “other income or assets available to support the child from whatever source.'" 301 Ark. at 629, 784 S.W.2d at 591 (emphasis added); see also Black v. Black, 306 Ark. 209, 213, 812 S.W.2d 480, 482 (1991).
Social Security disability benefits, like Veterans Administration benefits, are not taxed under the Internal Revenue Code as income. However, appellant’s benefits in question here serve the same purpose as Social Security disability benefits — to provide a source of income which may have been reduced or lost completely because of an injury or disability. In Cochran v. Cochran, 1 Ark. App. 146, 147, 644 S.W.2d 635, 636 (1983), we held that it was proper to consider the appellant’s disability payments from the United States Army and Social Security in considering the needs of the appellee and the ability of the appellant to pay, and to consider appellant’s income from whatever source derived in determining the amount of alimony to be paid.
Ordinarily, the amount of child support lies within the sound discretion of the chancellor. Ross v. Ross, 29 Ark. App. 64, 67, 776 S.W.2d 834, 835 (1989). The chancellor’s findings as to child support will not be disturbed on appeal unless it is shown that the chancellor abused his discretion. Borden v. Borden, 20 Ark. App. 52, 54, 724 S.W.2d 181, 183 (1987). Although chancery cases are tried de novo on appeal, the chancellor’s findings of fact will not be reversed unless they are clearly against the preponderance of the evidence. Roark v. Roark, 34 Ark. App. 250, 252, 809 S.W.2d 822, 823 (1991).
In rendering his order at the conclusion of the hearing, the chancellor stated:
The Plaintiffs motion to modify child support is granted as the Court finds that at this time his income is two thousand three hundred and seventy-five dollars ($2,375) per month derived from VA benefits and it is anticipated that he will receive Army retirement benefits in the amount of nine hundred dollars ($900) beginning on or about August 1, 1991.
The Court sets child support today based solely on his VA benefits and that child support will be three hundred and sixty-five dollars ($365) per month and will increase to four hundred and thirty dollars ($430) per month automatically when the Defendant receives his first retirement check.
In stating his reasons for considering appellant’s Veterans’ Administration disability benefits, the chancellor went on to state:
■ It is this Court’s reasoning that under the law in Arkansas, non-custodial parents are obligated under the law to support their children and it is my firm belief that the Supreme Court never intended to exempt income received from VA benefits, certainly when they are in the amounts they are in this case, to be exempt from being calculated in child support payments.
I can see no reason why Mr. Belue should live on a very substantial income and not support his child, even if the technical definition of income does not include that income which he receives.
The language “other income or assets available to support the child from whatever source” contained in the per curiam shows the committee’s intent to expand, not restrict, the sources of funds to be considered in setting child support. See 301 Ark. at 629, 784 S.W.2d at 588.
We cannot say that it was error for the chancellor to base the amount of child support ordered on a monthly income which included appellant’s Veterans’ Administration disability benefits.
Affirmed.
Cracraft, C.J., and Mayfield, J., agree. | [
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Judith Rogers, Judge.
Appellants, appellee’s employer and its insurance carrier, appeal from a decision of the Arkansas Workers’ Compensation Commission in which appellee was awarded medical expenses, temporary total benefits and permanent partial benefits of twenty-five percent to the left hand. The only issue before the Commission and before this court on appeal is the appellants’ contention that appellee’s claim for benefits was barred by the two-year statute of limitations found in Ark. Code Ann. § ll-9-702(a)(l) (1987). We agree with the Commission that appellee’s claim was timely, and affirm
There is no dispute that appellee, Gwendolyn Wortham, sustained a gradual onset injury in the form of a swan neck deformity of her left thumb as a result of operating a pressing machine over the course of twelve years while in the employ of appellant, Hall’s Cleaners. In September of 1987, appellee began working at the front counter of the business due to her complaints of pain associated with the condition. Prior to that time, she had sought and personally paid for treatment from her family physician, Dr. Jim C. Citty, who occasionally prescribed mild anti-inflammatory drugs to relieve her symptoms. After her move to the front counter, she continued, however, to work periodically at a pressing machine in the absence of a regularly assigned operator. On August 31, 1989, appellee underwent surgery to correct the swan neck deformity. She was released to return to work on October 9, 1989, and she filed a claim for benefits with the Commission three days later. In a report dated October 29, 1989, Dr. Citty related that, although he had been treating appellee for this problem for roughly five years, “[sjhe had continued to work through the present year at which time her disability has progressed to a point where surgical intervention became medially necessary.”
Based on this stipulated record, the Commission determined that, even though appellee had known of her condition for a period of years, the condition did not cause an incapacity to earn wages until August 21, 1989, the day of her surgery. The Commission then concluded that her claim for benefits filed in October of 1989 for an injury occurring the previous August was well within the limitations period. It is from this decision that appellants bring this appeal.
The issue then in this case is whether there is substantial evidence to support the Commission’s decision that appellee’s claim for benefits was not barred by the statute of limitations. On appeal, we must review the evidence in the light most favorable to the Commission’s decision and uphold that decision if it is supported by substantial evidence. See St. John v. Arkansas Lime Co., 8 Ark. App. 278, 651 S.W.2d 104 (1983).
The statute under consideration is Ark. Code Ann. § 11-9- 702(a)(1) (1987), which provides in part as follows:
A claim for compensation for disability on account of injury, other than an occupational disease and occupational infection, shall be barred unless filed with the commission within two (2) years from the date of the injury.
In determining that appellee’s claim was timely, the Commission relied on the supreme court’s decision in Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950), and our decision in Shepherd v. Easterling Construction Co., 1 Ark. App. 192, 646 S.W.2d 37 (1983). We agree with the Commission that these cases are controlling here.
Citing Donaldson v. Calvert-McBride Printing Co., supra, the supreme court in Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983), again observed that
Arkansas is an “injury state,” as we recognize that the date of the accident and the date of the injury are not necessarily the same. With this principle in mind, the Donaldson court had held that the time of the injury means a compensable injury, and that an injury does not become compensable until the claimant suffers a loss in earnings. We applied this rule in Shepherd v. Easterling Construction Co., supra, in holding a claim was not barred by the statute of limitations. Later, we explained in Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983), that the “clear holding in Donaldson and Shepherd is that the Statute of Limitations provided in § 81-1318(a) [now codified as Ark. Code Ann. § 1 l-9-702(a)(l)] does not begin to run until the true extent of the injury manifests and causes an incapacity to earn the wages which the employee was receiving at the time of the accident, which wage loss continued long enough to entitle him to benefits under § 81-1310 [now codified under Ark. Code Ann. §11-9-501].” (Emphasis in original.) As applied to the facts of this case, while appellee may have known of her swan neck deformity, the condition did not cause her to miss work or suffer a loss in earnings until the time surgical intervention became necessary. We hold that it was then that the injury became compensable and began the running of the statute of limitations.
Appellants argue that the Commission erred in not finding that appellee’s claim was barred since it found that she knew of her malady several years before filing a claim. In support of this position, appellants rely on the cases of Cornish Welding v. Galbraith, supra, McDonald Equipment Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989); Arkansas Louisiana Gas Co. v. Grooms, supra; and St. John v. Arkansas Lime Co., supra, for the proposition that once the substantial character of the injury becomes known a claimant must file a claim for benefits within the specified period of time or else be barred by the statute of limitations. Appellant’s reliance on these decisions and that proposition is misplaced under the facts of this case.
Generally stated, under consideration in those cases was the applicability of the “latent injury” exception, and of significance here, those decisions involved claims for benefits following previous periods of disability where the claimants had initially suffered an incapacity to earn wages. By contrast, in both Donaldson and Shepherd, the claimants had each sustained some form of injury, but the injuries did not presently result in an incapacity to earn wages. In Grooms, supra, we noted that Donaldson and Woodard v. ITT Higbie Mfg. Co., 271 Ark. 498, 609 S.W.2d 115 (Ark. App. 1980), a latent injury case, differed in both their facts and the principles applied. We further made the distinction that Donaldson deals with the question of when an injury becomes compensable, which is the issue in the case at bar, while the latent injury exception is concerned with the tolling of limitations once it has begun to run. The argument advanced by appellants is addressed to the latent injury exception and simply has no application here. This case squarely fits into the Donaldson and Shepherd rule that the statute of limitations commences to run when the true extent of the injury manifests and causes an incapacity to earn wages for the period long enough to qualify a claimant to receive benefits. Appellee’s knowledge of her condition is not controlling in this instance since her injury did not become compensable until such time as the injury caused an incapacity to earn wages. The Commission’s decision is affirmed.
Affirmed.
Cooper and Jennings, JJ., agree. | [
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John E. Jennings, Judge.
In his job as a pulpwood hauler, Melvin Johnson sustained several injuries over roughly a two-year period. After a July 6,1989, hearing, an administrative law judge found that appellant had permanent partial disability of 26 % to his left hand and 15 % to his left foot. The ALJ further ordered that appellant “undergo a comprehensive and thorough evaluation under the direction of his principal treating physician, Dr. Clinton G. McAlister,” with regard to his back, neck, and head injuries. After his hospitalization and evaluation by Dr. McAlister, appellant was dissatisfied with his lack of progress and went to Dr. Chris Bookout, a chiropractor, for treatment. These chiropractic treatments offered only temporary relief.
At an April 24,1990, hearing before another ALJ, appellant sought additional benefits, a retroactive change of physicians, and a penalty for failure to pay benefits previously ordered. The ALJ held that appellant had failed to show entitlement to permanent partial disability for his back injury and denied the retroactive change of physicians. However, the ALJ did find that a penalty was warranted. On appeal, the full Commission affirmed the denial of additional benefits and the denial of retroactive change of physicians, but reversed on the award of penalties.
Appellant first argues that it was error to not allow a retroactive change of physician from Dr. McAlister, an orthopedic surgeon, to Dr. Bookout, a chiropractor. The procedure for obtaining a change of physician is described in Ark. Code Ann. § 11-9-514 (1987). The record shows that appellant received an A-29 form notifying him of this procedure. Dr. McAlister testified that he did not refer appellant to a chiropractor. While the requirements are less strenuous when the desired change is to a chiropractor, advance written notice to the employer or carrier is still required. See Farmer’s Ins. Co. v. Buchheit, 21 Ark. App. 7, 727 S.W.2d 391 (1987); Ark. Code Ann. § 11-9-514(a)(2). The Commission no longer has the broad discretion it once had to retroactively approve a change of physicians. Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984); American Transportation Co. v. Payne, 10 Ark. App. 56, 661 S.W.2d 418 (1983). While appellant did not comply with the requirements of the statute, he argues that he substantially complied by explaining his non-compliance and by filing a petition for change of physician after the fact. Absent compliance with the statute, the employer is not liable for a new physician’s services. Crosby v. Micro Plastics, Inc., 30 Ark. App. 225, 785 S.W.2d 56 (1990). The Commission committed no error in denying the change.
Appellant’s second argument is that the Commission erred in denying his motion for an interlocutory order or remand for new evidence. The evidence appellant wanted the Commission to consider was a report made by Dr. Warren D. Long, a neurosurgeon. Dr. Bookout had referred appellant to Dr. Long in August of 1990, several months after the hearing before the ALJ. Whether to remand for taking additional evidence is a determination within the Commission’s discretion; on appeal an exercise of that discretion will not be lightly disturbed. Whirlpool Corp. v. Kaelin, 19 Ark. App. 331, 720 S.W.2d 722 (1986). A case should only be remanded if the newly discovered evidence is relevant, is not merely cumulative, would change the result, and was diligently discovered and produced by the movant. Roberts-McNutt, Inc. v. Williams, 15 Ark. App. 240, 691 S.W.2d 887 (1985), citing Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960). In applying these criteria here, the Commission stated that appellant had failed to show why Dr. Long’s evaluation report could not have been obtained prior to the ALJ’s hearing. The Commission found that appellant had failed to demonstrate due diligence in obtaining the additional evidence. We find no abuse of the Commission’s discretion on this point.
Appellant’s third argument is that the Commission erred in finding that he had failed to prove by a preponderance of the evidence that he had permanent partial disability of 50 % to the body as a whole. Appellant relies upon his own testimony regarding his condition, as well as the opinions of Drs. Bookout and McAlister which note appellant’s continuing complaints of pain. However, after examination and treatment, neither doctor was able to assign an impairment rating for appellant. Where the Commission denies a claim because of the claimant’s failure to meet his burden of proof, the substantial evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991). The Commission’s finding here is supported by substantial evidence.
Appellant’s fourth argument is that the Commission erred in holding that a late payment penalty should not be assessed until after the expiration of the time for appeal. In the first ALJ’s order, dated July 12,1989, the appellees were ordered to pay $9,140.25 for the injuries to appellant’s hand and foot. There was no appeal from these holdings. Partial payment of $4,316.62 was made on August 17,1989, and the balance of $4,823.67 was not paid until September 22, 1990.
Appellant’s argument is based on Ark. Code Ann. § 11-9-802(c):
If any installment, payable under the terms of an award, is not paid within fifteen (15) days after it becomes due, there shall be added to such unpaid installment an amount equal to twenty percent (20%) thereof, which shall be paid at the same time as, but in addition to, the installment unless review of the compensation order making the award is had as provided in §§ 11-9-710 — 11-9-712.
The Commission held that the penalty did not attach until fifteen days after the time for filing an appeal has expired:
[ T]he Administrative Law Judge’s order awarding benefits was filed July 12, 1989. Thus, [appellee] had until August 11 to file an appeal of that decision. Once the time for filing an appeal had expired [appellee] had 15 days within which to pay benefits as ordered by the award. Here, the first payment made on August 17, 1989, was within that period and therefore was timely. However, the payment made on September 22nd was not timely and the Administrative Law Judge correctly ordered [appellee] to pay a 20% penalty on those benefits.
Obviously the Commission read Ark. Code Ann. §11-9-802(c) in conjunction with Ark. Code Ann. § 11-9-711(a)(1), which provides:
(a) Award or Order of Administrative Law Judge or Single Commissioner - Review.
(1) A compensation order or award of an administrative law judge or a single commissioner shall become final unless a party to the dispute shall, within thirty (30) days from the receipt by him of the order or award, petition in writing for a review by the full commission of the order or award.
We think the Commission was right to try to reconcile the two statutes and that its interpretation of Ark. Code Ann. § 11-9-802(c) was the correct one.
Finally, appellant argues that the Commission erred in not applying the late payment penalty to medical benefits. However, in Model Laundry & Dry Cleaning v. Simmons, 268 Ark. 770, 596 S.W.2d 337 (Ark. App. 1980), we held that the penalty provision applies only with respect to failure to pay “installments” on time, and that medical expenses are not included. The Commission’s order merely followed our decision in Simmons.
Affirmed.
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OPINION.
Eakin, J.
The bill, considered simply as a suit to recover a balance due complainant for money advanced for lumber, and for money had and received by defendant to the use of ^ comPlainant, did not present such a case of mutual accounts, to require the interposition of a Court of Equity. The relief, as to that much, might have been effectually rendered at law. But the'bill further seeks to have complainant’s note delivered up and cancelled and to have an outstanding mortgage declared satisfied. This was the peculiar province of a Court of Equity, and draws to it all legal relief connected with the subject matter. The well settled rule is, that where, by reason of any equitable element, a Court of Chancery acquires jurisdiction of a matter in controversy, it will retain it for the settlement of all rights between the parties, growing out of and connected with the subject matter, whether legal or equitable, 'so as to do complete justice, and may even adjudge damages for compensation, which it •could not do, if they were the principal object of the suit.
If it were true that the action should have been brought at law, the objection should not have been made by demurrer, but by motion to correct the error made at the time of filing the answer. Gantt’s Digest, Sec. 4464. This, defendant3. could not have done, because he made his answer a cross bill, setting up equitable grounds for relief, and which quired the cause to be retained on the equity docket. This cause was, therefore, properly heard and determined in equity.
There was no error in allowing the notary, who took the J deposition, to amend his certificate in accordance with the facts. Whatever may be the case with regard, to the J ° proof and acknowledgment of deeds, where rights of third parties may be affected, there is no more reasoii for refusing to allow a commissioner to amend his certificate of the taking of depositions than there would be for refusing to allow a sheriff to amend a return. A sheriff not only may do that, but may be compelled to do it. As amended, it showed that the depositions had been taken at the time and place stated in the notice, and that the witnesses were duly sworn. It was not necessary to repeat the form and substance of the oath administered. In all material matters, the certificate corresponds with the directions of Gantt’s Digest, Sec. 2580. The motion to suppress the depositions was properly overruled.
The proof was all upon the part of complainant and fully sustains all the allegations of the bill. It is not only unim0 peached, but impresses the mmd with its truth in the absence ■of all effort on the part of the defendant, either by cross examination or by counter testimony, to destroy its force or explain it. He does not himself offer his own evidence to sustain the denials of his answer. His counsel contends here-that the exact amounts of the account are only proven by the testimony of the complainant, and that the answer, being responsive to the allegations of the bill, should overbear the testimony of one witness, without strong corroborating circumstances. It requires no citatiou of authorities to show that such was the old rule in equity. But, save as to amounts,, there was in this case very strong corroboration by other witnesses — quite sufficient under the rule, if it were applicable under the code. But it is not. The system has been changed. Formerly the complainant, without any oath of his own (save in exceptional cases provided by Statute),, drew the defendant before the chancellor to probe his conscience. Pie made his adversary his own witness, and being allowed to do so, contrary to the course of common law, he-was held bound by the answer unless he could disprove it. by still stronger countervailing evidence. This was reasonable.
The new system proceeds on different principles. All parties are allowed to testify, and bills of discovery are almost wholly abolished. They are no longer necessary where either party may testify for himself, and make Iris-ad versary a witness. All pleadings are required to be verified on both sides. The probing of conscience has been applied to both with equal severity before issues are made. The pleadings only make the issue, leaving the preponderance of testimony only necessary for him who has the onus-of showing the fact from which the equity arises. His own-testimony taken subject to all the tests of cross examination is a different thing from sworn allegations in pleading. It-is of a higher -nature, being more deliberate, cautious and plain, besides being in his own language, without the forms of pleading. It is enough when unimpeached and credible, to sustain a decree, in the absence of evidence on the other side. In short, the rule urged upon the court, has in the Code States, passed out of equity practice, and belongs only ■ to the history of Equity Judicature. (See Gantt’s Digest, Section 4591).
The matters in controvesy grew out of the old partnership transactions of T. C. Conger & Co., of which firm complainant, defendant, and two other persons, to-wit: Jacob Conger and Claiborne Cotton, were the component members. Claiborne Cotton’s interest appears, both from the bill and his own deposition, to have passed to the complainant ; but no notice whatever, in the suit, is taken of the interest of Jacob Conger. The defendant did not, in any pi’oper way, ask that he be made a party, or object to proceeding without him. The question still arises, whether the court should have proceeded in his absence. The test of the duty of the Chancellor, in such cases, is found in section 4481 of Gantt’s Digest, which provides that: “The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights. But, when a determination of the controversy between the parties before the court cannot be made, without the presence of other parties, the court must order them to be brought in.” The meaning of this is plain; and, in most cases, easy of application. A Chancellor should not allow his own time, and that of the court, to be consumed in doing a vain thing, which may be unsettled by the subsequent assertion of equities on the part of others not bound by the decree. Whenever it is apparent, from the pleadings, or seems probable, that there are other parties interested in the subject matter, whose rights, when asserted, might make a decree as to the parties before it, different from that which might appear proper in a con troversy between themselves alone, then a court should not proceed until all parties interested are present, that the ultimate rights, on final result, of the parties before it, as to each other, .may be permanently determined. But if it appears that the assertion of other equities in the subject matter, by third parties, could not alter the liability of the parties before the court, as between themselves, then, although such third parties may be properly brought in, they are not absolutely necessary. This is such a case. It is not a bill to wind up and settle a partnership, and marshal the assets, and appropriate them in due order, first to have payment of debts, next to the adjustment of equities between the partners, and then for partition of the l'emainder. That would have required all the partners to be present, in order to determine how much either one of them should pay the other. But here, it seems, that, by agreement, the old partnership was closed in 1872, and there are no outstanding debts of estimable importance. It'appears that complainant is entitled to one-half of the old assets, and defendant and Jacob Conger each to one-fourth. If the defendant is held liable to complainant for one-half of the debts to the firm, which he collected or used, and for one-fourth of the old debts of the firm, which complainant paid, that does not touch the rights of Jacob Conger in any way, and the amount due complainant, from defendant, cannot be altered by any assertion hereafter of Jacob Conger’s right against either, nor by the assertion of complainant’s rights against him for one-fourth of the debts paid. There is no distribution in this case of assets on hand. What remains is a personal matter between Jacob and each of the others, which may be independantly settled, without disturbing this decree. Certainly it would have been better, and more consonant with the general purpose of Chancery, to close all litigation in one suit, if the Chancellor had directed Jacob Conger to be brought in, that he might disclaim or assert his rights, but it was not imperative. The court might, and did, determine the controversy between parties before it, without prejudice to the rights of Jacob Conger.
The appellant contends that his agreement to account to complainant for a proportional part of the accounts, which he took and assumed, was within the Statute of frauds, and was not in writing. This position is not tenable. If, on a ■close of partnership affairs, one partner is allowed to take, for his own use, a part of the assets, whether choses in action, or anything else, on -an agreement with his copartners to account to them for a definite share, it is a separate and direct agreement, on a new consideration. It becomes to the other partners, then, a matter of indifference, whether the debts are collected or not. They belong to the partner •taking them, and he may collect them, or use them in trade, or to satisfy his own individual debts; or he may release them wholly. It amounts to nothing more nor less than a purchase of the interest of others in property belonging to them jointly. The Statute of frauds has no application.
The decree is in excess of the amount proved, but in all ■other respects, clearly just and equitable. The excess was probably the result of an error in calculation, or of a clerical error in the entry. However that may be, it is, nevertheless, an error which sustains the appeal, at least to the extent of carrying the costs of this court against appellee, and for the correction of excess.
Enter a decree here for the amount of $329.05, in favor of the complainant below, with interest at 6 per cent, from •the second day of July, 1872. Let the appellee be ordered to pay the costs of the appéal, and remand the cause to the -court below for execution. | [
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Harrison, J.
It was no justification or excuse for the defendant that when he sold the liquor, both he and the minor believed that the latter was of age. He sold it at his ° peril. Redmond v. The State, 36 Ark., 58; Crampton v. The State, ante.
^ was n0^ necessary for the State to prove that the sale was not by the written consent of the parents or guardian of the minor; the burden of proving such consent was on the defendant. If given, the proof of it was peculiarly within his power.
Greenleaf says: “When the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. Such is the case in civil or crimiual prosecutions for a penalty for doing an act which the Statutes do not permit to be done by any person, except those who are duly licensed therefor, as for selling liquors, exercising a trade or profession, and the like. Here the party, if licensed, can immediately show it, without the least inconvenience; whereas, if proof of the negative were required, the inconvenience would be very great.” 1 Green. Ev., sec. 79. And Bishop in his work on statutory crimes, says : & •$ ■& # •“If the law forbids the mass of the community to sell intoxicating liquors, but grants license to some particular in_ ■dividuals to sell it, then if some one person is indicted for making an unlicensed sale, the presumption that what is common in general belongs likewise to the particular stands as jprima facie proof, and the defendant, if he has a license, must show it. This conclusion of legal reasoning is aided by the further consideration, that since the averment is a mere negative one, and, if it is not true, the defendant has in his own possession the evidence to show the truth, the or'derly and convenient administration of justice is promoted, while no harm is done to the individual, by casting the burden on him.” And he further remarks : “The question relates, not only to the want of a license from the public author ities, but the want also of the consent of parents, guardians .and the like.” Bish. Stat. Crimes, secs. 1051, 1052; 1 Wharton Ev., sec. 368; Roscoes Crim. Ev., 79; Hopper v. The State, 19 Ark., 143; Farrall. The State, 32 Ala , 557.
The case otFarrall v. The State, is directly in point. It was an indictment for selling liquor to a minor — a student at school — without the consent of his parent or guardian, and it-was held that the burden of proving such consent was •on the defendant.
As the person to whom the liquor was sold, was a petent witness to prove his own age, there could be no objection to his stating that he derived his knowledge of ■day on which he became of age from an entry of his birth in the family Bible, or from any other source of information. His evidence as to that fact, was, as a matter of course, but hearsay.
As every person of common intelligence knows that * ° whisky is an intoxicating liquor, and there was no question, and could be none, as to that fact, the struction that it was so was unobjectionable.
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Harrison, J.
The lien of the landlord was superior to •the mortgage, and it was in no way affected by it. Sevier v. Shaw, Barbour & Co., 25 Ark., 417; Tomlinson v. Greenfield, 31 Ark., 357; Watson v. Johnson et al, 33 Ark., 737; Buck v. Lee et al, 36 Ark., 525.
Being entitled to have the cotton, raised on the demised premises, applied in payment of his rent, he had the right to receive payment in it. Watson v. Johnson et al, supra; Buck v. Lee et al, supra.
And, though the assignment of the note did not in law •carry with it the lien, it still subsisted, and as the note was held by M. Hanf & Co. only as collateral security, the delivery of the cotton to them, in payment of it, was virtually •a .delivery and payment to Levy, the same in effect as if Levy still held the note and the delivery and payment had been directly to him, and he had then turned the cotton •over to them in discharge of his debt to them.
The judgment is affirmed. | [
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English, C. J.
Flournoy Barbour, the plaintiff in error* loosely indicted as F. Barbour, was arraigned, pleaded not guilty, tried by a jury, found guilty of murder in the second degree, as charged, and his punishment fixed at imprisonment in the penitentiary for eighteen years. A new trial was refused him, but the Court, of its own motion, reduced the time of imprisonment to nine years, and sentenced him for that period.
Passing over the points made and argued by his counsel here, in which there is nothing novel, there is a fault appearing of record, which we cannot overlook in a case involving liberty, and which is fatal to the judgment.
At the September term, 1880, of the Circuit Court of Desha county, the following record entry appears to have been made in this case :
“On this day comes the State, etc., and comes the defendant in custody, etc., and by his counsel, and being arraigned, entered his plea of not guilty to the charge in the indictment herein, and both parties announcing themselves ready for trial, it is ordered that a jury come; whereupon come J. T. Truvalt,” etc. [eleven others being named], “twelve good and lawful jurors, of the body of Desha county, who were selected from the regular panel, in accordance with law, to try this cause, and the jury, after receiving the admonition of the Court, are allowed to separate-until to-morrow morning at 9 o’clock.”
On the next day the following entry appears :
“On this day comes the State, etc., and comes the defendant in custody, etc., etc., and also comes the jury heretofore empannelled, and all being present, this cause proceeds ; and after hearing the evidence adduced, arguments of counsel, and having received the instructions • of the Court as to the law, the jury retired to consider their verdict,” etc.
There is nothing in either of these entries, or any other-entry appearing in the transcript, to show that the jurors-were sworn.
The oath administered to the panel of twenty-four petit jurors, selected for a term of the Court, binds them in all civil cases tried by jury taken from such panel during the term. Gantt’s Digest, sec. 3696-7, But in a felony case,, like this, though the trial jurors be taken from the term panel, they must be specially sworn, as required by Sec.. 1921 of the Digest. See also, Sec. 1898.
The record should show that the jurors were sworn. See Anderson v. State, 34 Ark., 257, and cases cited.
Beversed and remanded for a new trial. | [
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Eakin, J.
Hilliard Harris, in 1876, conveyed to Estes some lands, in consideration of two written obligations by Estes to deliver him certain amounts of cotton, one-half on or before Christmas, 1877, and the other half on or before Christmas, 1878. The first he assigned to W. N. Hanie, with the lien, if there was any which he could assign. The second he afterwards assigned to J. R. Harris, the appellant.
It may be gathered from the allegations of the bill in this case, taken with the reasonable inferences, which must suffice in the absence of a motion to make more specific, that early in 1878, Hanie filed a former bill against Estes, claiming a lion upon the lands for the value of the cotton, to ■have been delivered at Christmas. He mentioned the existence of the other obligation given, also, as part of the consideration of the purchase by Estes, which he said Harris had assigned, but he did not kuow to whom. J. R. Harris, the holder and complainant in this case, was not made a party, and did not appear.
It appears, however, that Hanie must have found out soon, that the present complainant was the owner. On the seventh •of March, 1878, he and complainant, and Estes, the obligor •and respective owners of the two instruments, executed ■amongst themselves, without any order of court or reference to the pending suit, articles of agreement by which they referred their rights regarding the subject matter to a board of five arbitrators, who made an award, as follows :
1. That Hanie should give up his note (as it is called) which he held against Estes, and should accept a forty-acre tract of the same land which Estes seems to have sold to one •J. Hanie. Who J. Hanie was, does not appear, but as Hanie was the son-in-law of Estes, it was probably his wife, or near relation.
2. That Estes repay to said W'. N. Hanie a hundred dollars, which had been paid on the purchase money of said forty acres.
3. That this complainant, J. R. Harris, should hold his note, and that the land purchased of Hilliard Harris should •stand as collateral security for its payment: and—
4. That Hanie assume the payment of complainant’s note, and, when that should be done, Estes should convey him the remaining interest in the land.
This award was duly approved and ratified, under the •signature of the three parties concerned.
The bill charges, that notwithstanding this arbitration, •and whilst Hanie and Estes were both professing to be willing to abide by it, they conspired together to defraud him; and, at the September term; 1878, of the Circuit Court, caused a consent decree to be •entered in the pending suit, in Hanie’s favor, against Estes, for $319, as for the value of the cotton due on Hanie’s note, which was declared a lien upon the land ; and a commissioner was appointed to sell. That both Hanie and Estes represented to him that the suit had been dismissed. That Estes told him he had fully settled with Hanie, who had given up his note. That he offered complainant to make him a deed of all the lands remaining, after the sale of the forty acres to J. Hanie, if he would give up his note also. That he consented, did so, and received the deed. That the cotton due on Hanie’s note was not worth more than $200. In short, that the whole was a plan concocted and executed to deprive complainant of all benefit of his note, He says that Estes has his note and is insolvent, and that Hanie has been in enjoyment of the property for two years before the decree, the rents and profits of which will cover his claim,
He prays that the decree may be revised so as to protect his rights. That, on a final hearing, his note may be restored, and the deed to him be cancelled, or that he have a conveyance of a half interest in the land, or that it be sold for his benefit.
The sale, by the master, was suspended, by an interlocutory injunction. Afterwards, a general demurrer to the bill was sustained. The complaiuant declined to amend further, and, his bill being dismissed, appealed.
As a bill of review, the question upon it is, does the former decree show any error on the face of the record ? There is no claim on the grouird of newly discovered facts, for which, by leave of court, a bill of review might lie.
The deed from Hilliard Harris to Estes, for which the cotton obligations were given, is not set forth; and there ° jg n0 allegation that a lien was retained upon the land to secure the delivery of the cotton. Was there an equitable vendor’s lien? That is created by equity, and is unknown at law. It arises to secure the payment of the purchase-money, but does not aiise to secure tbe performance of any act, the breach of which performance would make a claim for unliquidated damages. In such cases it is considered that the obligation for performance, with the legal right to damages on breach, is taken itself as payment. Whilst Courts of Equity will create the lien for amounts which are liquidated, they decline the double task of liquidating the damages and then declaring a lien in favor of parties who have not reserved oue in the deed. This, though sometimes questioned, and lirst held in very strong cases of obligations requiring great length of time for performance, has come now to be a recognizable principle, both in England and in those American States which have not rejected the doctrine of the vendor’s lien altogether. Parrott v. Sweetland, 3 Mylne & Keene, 655; Brawly v. Catron, 8 Leigh, 522; Arlin v. Brown, 44 N. H., 102; Payne v. Avery, 21 Mich. 504.; McCandlish v. Keene et als., 13 Grattan, 615.
There was no contract by Estes to pay any sum of moneys, whatever, nor the equivalent of any definite sum, in x . J x x erty or services. What was the “purchase-money” to paid on this bargain? So much cotton; it may be said, which always has a marketable value. True, but that value depends always upon the quality, and fluctuates almost with each day of the year. “So many pounds of cotton” can not, by force of the language, stand for any definite sum of money. The failure to deliver cotton creates no debt. It is a civil injury, sounding in damages alone. There was no vendor’s lien in this case, at all. If there had been, it would not have passed by the assignment of the obligations, either to Hanie or complainant, inasmuch as the assignments were absolute. Hecht v. Spears, adm’r, 27 Ark., 229.
As no lion, for either party, is shown on the face of the record of the former suit, a consent, by Estes, that one , should be declared in favor of Hanie, could not injure the holder of the other obligation, as to any vested right. He cannot be said to have been prejudiced or aggrieved by anything appearing in the decree, and a bill of review would not lie. This renders it useless to consider whether this comes within the somewhat limited and not very well defined class of cases where a bill of review may be maintained by one not a party to the former suit.
Considering this simply as a bill of review, it was properly held demurrable. But it has a far more important aspect considered as a bill to attack and set aside a decree for fraud, and to enforce the equities of'all parties amongst each other, connected with the objects and subject-matter of the suit.
The facts connected with the arbitration, and the conduct of the parties in procuring the decree, if true, as they must, on demurrer, be assumed to be, make a case of fraud, imposition and circumvention which Courts of Equity can not, without renouncing their functions, allow to stand, if the results are, or would be, injurious to the complainant. They speak for themselves, standing confessed.
The arbitration, although made pendente lite, has upon its face no reference to the suit. It does not seem to have been made under any order of the court, or with any view of being made the order of the court in the case. One of the three parties to it, was not a party to the suit. It was an arbitration at common law. It appears regular, and, until impeached by facts or denials, is of the very highest authority. “Thereby,” says Mr. Justice Blacicstone, “the question is as fully determined, and the right transferred or settled, as it could have been by the agreement of the parties, or the judgment of a court.” B., III, p. 16. This is strong language. But it impresses the policy of the courts to discourage litigation, and support the ■Christian injunction upon all men, to agree with their adversaries quickly, while they are in the way with them.
By that arbitration, complainant obtained the first and •only -lien which appears in the whole history of the trans-actions, and, while it lasted, it became, between the parties, as effectual as if retained in the original deed to Estes. Any step taken after that, by the parties in the suit, to press it to a termination inconsistent with the arbitration, was a fraud.
The complainant alleges that afterwards, upon representations made to him by Estes, that Hanie had given up his note, he agreed to do the same, and to accept a conveyance of the laud remaining in Estes’ hands, and that the •agreement was executed. I cannot see how a mere misrepresentation as to the obliging spirit" of a third person would be a fraud, cognizable in equity, upon one who, with full, knowledge of the value of his property, should be prompted to do something of like nature. Upon this matter, however, the court now makes no special ruling. It will rest here•after with the Chancellor, upon clear knowledge to decide, whether the complainant shall have Ms note and lien again, •or rest content with having his title quieted.
He will get neither, if the old decree is enforced. His lien aros % pendente lite, and is not shown by any record, of which a purchaser could take notice. The sale being by ■consent of the owner of the legal title when the suit commenced, of lands then encumbered by no lien, would pass a •clear title to the purchaser. The proceeds will ■ go largely to Hanie, and there may be no surplus. The complainant must have relief in equity, on his showing, or he will suffer irreparable injury.
The defendant should be required to answer the bill. What aspect of the case will be presented, upon final hearing, should not be anticipated.
Enough has been said to afford a safe and easy guide-to the Chancellor and attorneys.
Reverse the decree and remand the cause for further proceedings. | [
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English, C. J.
Appellant, Jeff. Perry, was indicted in the Circuit Court of Yell county, Dardanelle District, for ■stealing “one heifer yearling, of the value of five dollars, the property of one Ras DeNeal.”
He was convicted, and sentenced to the penitentiary for ■one year; motion for a new trial and ai’rest of judgment overruled ; bill of exceptions, and appeal.
I, The commencement of the indictment is in Codeform, ■and the larceny is alleged in the usual common law form. J , 0 'The particular objection taken to the indictment in the ■motion in arrest of judgement is, that it does not allege that the heifer was marked or branded. This was not necessary, being matter of defense, as decided in Mathews v. State, 24 Ark., 484.
II. The Court refused the 6th instruction moved for ¡appellant, which follows:
“That the yearling mentioned in the indictment is not ■the subject of larceny, unless the same is designated by the owner thereof, by some mark or brand ; and unless the jury find that the said yearling was marked or branded, they will acquit the defendant.”
“Owners of cattle, hogs or sheep, which run at large in "the range or woods, shall designate such animals, if over twelve months old, by brands or ear marks; otherwise, if "taken or converted to the use of any other person, such person ■shall not be deemed guilty of a larceny, but the owner may have his action for the value of such unmarked or unbrand•ed animal.” Gantt’s Digest, sec. 1382.
. The evidence on the part of the State conduced to prove ■that in March, 1880, a constable levied on ten head of cattle, the propertjr of Ras DeNeal, and among them the heifer in controversy, and left them in charge of another person until the day of sale. That on the day of sale the ' ■heifer was missing, and in the meantime appellant had sold her. The witnesses for the State call her a heifer yearling, but there was no proof on either side that she was over twelve months old, or that she was not marked or branded.
As matter of defense, ajDpellant should have proven that the heifer was running at large in the range or woods ; was-over twelve months old, and not marked or branded, when he took and converted her to his own use. He made no- ■ such proof, but attempted to prove that the wife of Ras DeNeal, with his consent, had given the heifer to him when a calf; which, from other evidence, it seems'the jury did not believe to be the truth.
The sixth instruction asked by appellant was, therefore,, properly refused as 'abstract.
III. The instructions given for the- State, with those-given for appellant, fairly submitted to the jury, upon all the evidence, the question whether he was guilty or innocent of the larceny of the4 heifer as charged. He objected to but one instruction, the fifth, given for the State, which, follows:
“If the defendant knew that the yearling mentioned in the indictment had been taken charge of by an officer, as the-property of Ras DeNeal, and failed to appear and make known his claim to the yearling, but without any knowledge-of the person having the same in legal custody, sold the heifer, and when afterwards questioned as to the property, failed to make known the facts of his having sold it, and remained silent, or pretended to know nothing of the whereabouts of the property, these are circumstances which may be considered by the jury as tending to establish the guilt of the defendant.”
There was evidence conducing to prove the facts stated' hypothetically in this instruction, and they tended, if the-jury believed them to be true, to establish the guilt of the-appellant. There is, therefore, no valid objection to theinstz’uction.
IY. The trial entry shows that when the ease was called, the parties announced themselves ready for trial, and that “defendant waived arraignment, and the drawing of a jury being waived, the following jurors, to-wit: James Patillo, etc., etc., were selected, and duly sworn to try the cause, and, after hearing the evidence, instructions of the Court, and the argument of counsel, retired, etc., to consider of . their verdict,” etc.
The record fails to show that defendant pleaded to the indictment, or that any plea was entered for him, and the trial'wbs, therefore, without an issue. This is a fatal de- ' feet in the record, and ground of rever.sal, as held in Lacefield v. State, 34 Ark., 275.
The judgment, for this error, must be reversed, and the cause remanded for a new trial, after appellant has pleaded to the indictment, or the plea of “not guilty” has been entered for him, if he stands mute.
Y. When the appeal was allowed, by one of the Judges of this Court, the transcript failed to contain the entry showing the organization of the grand jury at the term at which the indictment was found, and which is part of the record in every criminal case brought here by appeal or writ of error, and the omission had to be cured by certiorari.
For this fault of the Clerk below, he will be allowed no costs for his return upon the certiorari. | [
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Hon. W. W. Smith, Special Judge.
The Memphis & Little Rock Railroad Company by its deed, dated May 1, 1860, -conveyed its road, rolling stock, charter, franchises and all its property to R. C. Brinkley, Sam. Tate and G-eo. C. Watkins, in trust to secure payment of principal and accruing -semi-annual interest on its thirteen hundred bonds of that •date, each for one thousand dollars, maturing May 1, 1890, and bearing interest at eight per cent., payable semi-annually, for which interest coupons were attached to the bonds. ‘The deed provided for sale upon ceitain defaults, but there was in it no provision that upon any default in payment of interest the principal should become due. This deed was duty recorded in all the counties through which the road ran and in which any of the property conveyed was situate, within a short time after its execution and before the first ■day of September, 1860.
By an Act, approved January 3, 1861, entitled “An Act to encourage internal improvements,” the Legislature of the State of Arkansas appropriated one hundred thousand dollars of the five per cent, fund and lent it to the same railroad company for ten years at the rate of eight per cent, per annum interest, to be paid annually. On January 10, 1861, the railroad company executed and delivered to the ¡State its promissory note for that sum, and on the same day "the companj'’ executed and delivered to the State a mortgage by which it conveyed to the State its road and rolling stock to secure payment of the sum so lent and the accruing interest. This deed was never recorded. On March 11, 1867, the General Assembly, by an Act approved on that day, remitted all interest that had then accrued upon said loan.
On March 1, 1871, the railroad company executed and issued its certain other bonds, one thousand in number, each for one thousand dollars, payable January 1, 1901, bearing-seven per cent, interest, payable semi-annually, for which' coupons were attached, and to secure payment of the principal and accruing interest, by its deed of that date, conveyed its charter, road, franchises and all its other property to Henry F. Yail in trust to convey, upon the default therein mentioned. This deed was duly recorded in all the counties, in which any part of the convéyed property was situate within less than a month after its execution.
This conveyance was' made expressly subject to the first, deed above recited by which the property-was conveyed to Brinkley, Tate and Watkins.
It was also provided that if default in payment of interest or of any of the coupons was made for sixty days, that the trustee might sell sufficient to pay the amount due ; but that “ if a majority in number and value of the holders of the coupons which may remain due and unpaid shall elect, to do so they may postpone the sale of the property hereby-conveyed for the payment of the said coupons so due and unpaid for the period of twelve months, and at the expiration of the said period the said Henry F. Yail, shall-, upon request in writing of a majority in number and value of the holders of the bonds and coupons hereby secured, offer for sale <>nd sell all the property hereby conveyed to him.”
The default in pajnnent occurred ; the holders of the unpaid coupons postpoiicd the sale for the time provided, and at its-expiration a majority in number and value of the holders of the bonds and coupons secured by this deed, requested a sale of the whole conveyed property. The trustee thereupon-gave notice according to the provisions of the deed that he-would sell the whole property conveyed to the highest bidder at Hopefield, Arkansas, on March 17, 1873, subject to the lien of the deed to Brinkley, Watkins and Tate and of' the bonds thereby secured and “ furthermore, subject to all liens of the State of Arkansas, upon said property or any part thereof', previously to the lien arising under said, second mortgage deed of said company.”
On the day named, the trustee sold the property to Still-man Witt, who purchased for himself and his associates, and the trustee, by his deed dated March 17, 1873, conveyed the-whole property to Witt.
On March 29, 1873, Witt, by his deed or declaration, declared that he had purchased for himself, J. H. Wade,. John J. Astor, Robert Lennox Kennedy, A. A. Lo, George T. Adee, William B. Greenlaw, Hu. L. Brinkley and Sam.. Tate, holders of the second mortgage bonds of the company-secured by the deed to Vail and conveyed to himself and the others named to hold in the proportions of their ownership of such bonds, the proportion beiug stated in the deed. These parties afterwards organized the Memphis &, Little Rock Railway Company and conveyed the property to that company.
That company afterwards made a proposition to the holders^ of the first mortgage bonds of the company, which was, by part of them conditionally accepted. The proposition and-acceptance were in these Avords :
[propostion.]
The Memphis & Little Rock Railway Company propose to-the first mortgage bondholders of' the Memphis and Little-Rock Railroad Company to:
Issue first mortgage 8-100 currency, thirty-year bond...............................$ 2,600,000
Issue second mortgage 6-100 currency, twenty-five-year bond....................... 1,000,000
Issue income 7-100 currency, twenty-year bond 1,000,000
Issue stock............................... 5,000,000
It is proposed:
, 1. “To place in the hands of the trustees for distribution •as hereinafter provided for, the following securities : .
$2,400,000, first mortgage bonds ;
300.000, second mortgage bonds ;
500.000, income bonds ;
300.000, stock.
2. “To authorize said trustees to issue to the old first 'mortgage (i. e. bondholders), new first mortgage 8-100 bonds for the principal, coupons and funded interest bonds •and coupons thereon, with interest on said coupons, and to hold said old securities for the specific benefit of the new bonds issued therefor until all legal questions are removed ■or settled satisfactory to said trustees ; but said bonds are to be so printed across or defaced as not to be a marketable •bond, if said trustees deem it expedient.
3. “To authorize said trustees to use, either in settlement of rolling stock debt which is a lien on the property, -or' to return to the company pro rata, as they pay any part of said debt, $2,000,000 of said first mortgage eight per "Cent, bonds.
4. “ To,authorize said trustees to issue to the holders of Ai’kansas State bonds, issued to the Memphis and Little Rock Railroad Company, for each bond of $1,000, $250 of first mortgage eight per cent, bonds ; $250 seóond mortgage ■••six per cent, bonds ; $250 income bonds, and $250 for stock 'their face ; and for the mature and maturing coupons, up -to and including April 1, 1875, income bonds for their face; provided, said specified issues of Arkansas State-bonds shall be presented on or before the first- day of March,,. 1874, or at any other date the trustees may deem expedient. If said bonds should not be presented by that time, said trustees are authorized to issue up to the limit of' $1,200,000 Arkansas bonds for any other bonds of the State issued to said railroad, such amounts of any of said new securities in payment therefor, as they may deem fit, not ■ exceeding the pró rata ; all such Arkansas bonds to be held in trust by said trustees for the purpose of paying the debt due by the Memphis and Little Rock Railroad .Company to-the State of Arkansas.
5. “To authorize said trustees to use the coupons on said Arkansas bonds to pay the interest on the bonds due to - the State of Arkansas, that were issued to the Memphis and. Little Rock Railroad Company, as it may become due.
6. .“To authorize the said trustees, in case the State of ' Arkansas shall donate to the railway any State bonds, or-other things, on condition of said company retiring the original $1,200,000 State bonds, to give to the parties who ■ may have surrendered State bonds issued to the Memphis • and Little Rock Railroad Company, a pro rata proportion of' such new donated bonds, upon their returning to the trustees, for the use of the Railway Company, the income bonds- and stock received by them on account of the principal of ‘ such surrendered bonds in equal proportions and amount.
7. “ The company agree with the trustees that they wilL reserve $3,000,000 of stock, subject to their order, to be ■ used in exchange for stock of the Memphis and Little Rock. Railroad Company; said stock to be transferred to the ■ Memphis and Little Rock Railway Company, or exchanged,, and not to be exchanged at above par for the face of said-stock in new stock at its par or face value.
8. “ The first mortgage bondholders to fund their inter— ■est on their bonds, and funded interest bonds, up to July 1, 1874, in first mortgage', eight per cent, bonds at par; the new first mortgage bonds to bear interest from first of July, 1874, and first coupons to be paid first of January, 1875. The second mortgage bonds to bear interest from the first of April, 1875, and the first coupons to be paid first of October, 1875 ; and both classes of bonds to have semi-annual coupons attached, for the interest thereon, payable semi-annually, beginning with the dates aforesaid.
9. “The expenses of executing this proposition to be borne by the Railway Company.”
[aCCEI’TANCE.]
“ New York, October 18, 1873,
“We, whose names are hereto subscribed, holders of first mortgage bonds of the Memphis and Little Rock Railroad Company, and funded interest bonds of said company, for the amount of said bonds set opposite our names, do hereby accept the above and foregoing proposition of the Memphis and Little Rock Railway Company, and assent to the securities proposed, and agree to surrender our bonds and coupons to the trustees, in accordance with said proposition, hereby modifying, to that extent, all former agreements made on the subject, with the purchasers of said road under the second mortgage, only to the extent named in the foregoing proposition; provided, that nothing contained in our assent to this proposition, shall he construed to deprive us of our rights and security, or as an acknowledgment of satisfaction for the old securities, in such case to he surrendered to the trustees, until all questions, legal or equitable, shall he fully settled as to the legality of the. new issue of bonds, and-the mortgage, securing the same, as being a first lien. This agreement is to be executed, so far ¡as the issuance and delivery to the trustees of the securities received, by the first day of January, next.
“ We hereby name and appoint as trustees in the foregoing proposition, James Tinker, of the City of New York; Wm. 8. Pierson, of Windsor, Connecticut; R. K. Dow, •of Claremont, New Hampshire; with full power to receive ■the securities named therein, and to act as trustees in this ■agreement, with the usual powers of trustees in such cases. The said company shall not be entitled to issue and retain the said $200,000 first mortgage bonds until the said $2,400,-'■000 first mortgage bonds shall be delivered to the trustees, and, also, $275,000 of Arkansas State bonds, indorsed by the Memphis and Little Rock Railroad Company have been ¡surrendered to the trustees for exchange on the terms •specified.
[signed in duplicate.]
S. M Síjtnson, $81,000, first mortgage bonds ;
S. M. Swinson, $45,500, interest bonds ;
C. W. Lampson & Co., $180,000, first mortgage bonds ;
C. W. Lampson & Co., $28,560, interest bonds;
James Tinker, $2,000, interest bonds ;
E. H. Cossitt, $100,000, first mortgage bonds ;
E. H. Cossitt, $17,000, interest bonds ;
J. N. Phelps, $20,000, first mortgage bonds’;
C. Dow, for R. K. Dow, $15,000, first mortgage bonds ;
R. K. Dow, $10,000, first mortgage bonds ;
Edward Matthews, $322,000, first mortgage bonds;
Edward Matthews, f84,180,.interest funded bonds.”
In compliance with this proposition, the railway company, "by its deed, dated December 1, 1873, conveyed all the said road, franchises and property to the New York Guaranty ¡and Indemnity Company, to secure payment of two million, six hundred thousand dollars of its “first” mortgage bonds, due January, 1904, bearing seven per cent, interest, payable semi-annually, for which coupons were attached. This, deed provided that if default was made in payment of the coupons, or any of them, and continued for six months, that the principal should become due, and that sale might, be made of the property. It also provided that the Indemnity Company might resign, and, in that case, William S. Pierson, Watson Matthews and R. K. Dow should become trustees of the deed, with all powers and rights.
Upon this deed being executed, those of the holders of' the first mortgage bonds of the railroad company, secured by the deed to Brinkley, Tate and Watkins, who had accepted the proposition, surrendered their bonds — not to the railway company, nor to the railroad company (neither of which, as is shown, ever received or had possession of them) ; but to the trustees named in the acceptance of the proposition — James S. Tinker, William S. Pierson, and RK. Dow, the survivors of whom still hold them*.
Default having been made, and continued for -six months,, the Indemnity Company resigned, and, thereupon, the substituted trustees, on the twenty-ninth day of June, 1875,. exhibited their bill in the Circuit Court of the United States for the Eastern District of Arkansas, praying foreclosure of the mortgage executed by the railway company.
Afterwards, on November 21, 1876, Brinkley aiid Tate, surviving trustees of the deed of the railroad company, of May 1, 1860, intervened in that cause and were, on their request made parties complainants, and, by their bill, prayed foreclosure of the deed of “May 1, 1860.
The court decreed foreclosure of both mortgages, both being kept distinct in the decree, the amount due on each-being separately ascertained, and ordered sale of the property, first, under the deed of May 1, 1860, and, second,, under the mortgage of the railway company. Separate sales were had, at each the property was purchased by William S. Pierson, Watson Matthews and R. K. Dow, separate sums being bid. The sales were reported to the court and confirmed, and, by order of court, the commissioners conveyed the whole property to the purchasers, in trust, that they should convey it to a new company to be formed by the holders of the bonds.
The bondholders, under the provisions of the charter of the Memphis and Little Rock Railroad Company, organized a new company, called the “Memphis and Little Rock Railroad Company as Re-organized,” and, on the thirtieth day of April, 1877, the purchasers conveyed the whole property of every kind and description, including the charter, and all franchises and privileges, the road, rolling srock, and all appurtenances, to this company ; which entered on and took, and has since had and kept, possession thereof, and is now operating the road.
On March 27th, 1875, the State of Arkansas filed-her bill in the Chancery Court of Pulaski county, making the Memphis and Little Rock Railroad Company, Sam Tate and R. C. Brinkley, surviving trustees of the deed of May 1st, 1860, some persons whom she alleged were holders of bonds secured by that deed, and others whom she alleged were holders of the second mortgage bonds of the old railroad company, parties, praying a foreclosure of her mortgage, and that it be declared a prior lien.
After the purchase of the property by the present defendant, the Memphis and Little Rock Railroad Company as Re-oi’ganized, that company intervened in this cause, was made a defendant, and filed its answer, setting up all the above facts — the purchase of the property by that company, its possession, etc., and contended that the mortgage of the old railroad company, dated May 1st, 1860, was a prior lien upon the property to the mortgage held by the State; that so far as the State was concerned, nothing that had-been done between the railroad company and the holders of bonds secured by that deed, affected the lien of the deed of May 1st, 1.860, and that consequently the State was a second incumbrancer, and held nothing but a mortgage of the equity of redemption; that she was only entitled to redeem, etc., etc.
The cause was heard, and the chancellor held that the ■effect of the transaction and agreement of October 18th, 1873, between the railway company and the holders of the bonds secured by the deed of 1860, as to all bondholders who had surrendered their bonds under that agreement, was a novation, and extinguished the surrendered bonds; that as against all bonds so surrendered, the State had the prior lien; found the debt to be $202,133 32-100, and ordered sale subject to the lien of the bonds of 1.860 not surrendered.
From' this decree the defendant, the Memphis and Little Rock Railroad Company as Re-organized, appealed to this court.
It is conceded by the company’s counsel that, notwithr J x J % ' standing the mortgage, to foreclose which this suit was brought, was never filed for record, it is yet a lien upon ppe eqUpy 0f redemption, which remained in the original company after the execution of the first, or Brinkley mortgage. This is upon the principle that the loan and stipulated security were in pursuance of a public Statute, of which all persons were required, at their peril, to take notice, and the State must not be prejudiced by the neglect of her agents.
The State’s counsel concede that the chancellor erred in holding that only. $100,000 of the first mortgage bonds are now outstanding, and the only prior lien to that of the State. This relieves us of the necessity of inquiry whether the transaction of October 18th, 1873, was a novation, by which the holders of that series of bonds lost the tpriority which they once undoubtedly held over the State, a junior incumbrancer.
Not having been a party to the foreclosure suit in the ° J Eederal Court, the interests of the State are in affected by the decree rendered in that proceeding. On the ■contrary, she may foreclose and sell the equity of redemption, and the purchaser at that sale will be entitled to be let into possession, and to redeem the first mortgage.
The decree below will be reversed, as upon a concession of error, and a decree will be entered here for a sale of the property, subject to the lieu of the deed of- May 1st, 1860. The clerk of this court will be charged with the execution of this decree, and if any surplus is produced by that sale, after defraying the costs of the suit below, expenses of sale, and the debt due the* State, it will belong to the Memphis and Little Rock Railroad Company as re-organized, the purchaser under the decree of foreclosure in the Federal ■Court. The costs of this appeal must be adjudged against the State.
Hon. J. R. Eakin did not sit in this case. | [
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' Harrison, J.
But one offense was charged in the in•dictment. It was alleged to have been committed in two modes, in distinct counts, the first charging it to have been by selling, on Sunday, the fourteenth day of March, 1880, a pint of whisky; the second, by selling, on the same day, a pint of alcohol. See Howard v. The State, 34 Ark., 433.
The indictment was under Sec. 1618 of Gantt’s Digest, which is as follows :
“Every person who shall oil Sunday keep open any store, or retail any goods, wares or merchandise, or keep open any dram-shop or grocery, or sell or retail any spirits or wine, shall, on conviction thereof, be fined in any sum, not less than ten dollars, nor more than twenty.”
The evidence was clearly sufficient to prove the sale of a pint of alcohol on a Sunday, in the county, within twelve months before the finding of the indictment.
Alcohol is embraced in any one of the terms, goods, wares •or merchandise. To sell by small parcels or quantities, and not in the gross, is to retail.
The judgment is affirmed. | [
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W. W. Smith, Special Judge.
Zimpleman filed this bill to remove a cloud from his title to a tract of land, by a tax sale made June 9, 1873, for the taxes of 1872, at which Lawrence became the purchaser. He alleges, somewhat indistinctly, that he is in possession of the premises, but this is denied by the answer, and it is averred that Lawrence has had peaceable possession ever since the year 1875. There is not a particle of proof in the record to show with whom the possession is, or whether the land is wild and unoccupied.
To obtain the relief sought, the plaintiff must be in pos- ° ’ 1 t r session when he brings the suit, unless his title be an table one. A Court of Chancery is not the appropriate forum to try a purely legal title. The defendant, if he is in actual possession, is entitled to a trial by jury, unless there are peculiar circumstances bringing his case under some one of the recognized heads of equity jurisdiction. The case of Shell v. Martin, 19 Ark., 139, which holds to’ the contrary of this, was disapproved by Mr. Justice Fair-child/ in Apperson v. Ford, 23 Ark., 746, and has been discredited by the later decisions. Branch v. Mitchell, 24 Ark., 431; Byers v. Danley, 27 Id., 77; Miller v. Neiman, 27 Id., 233; Chaplin v. Holmes, 27 Id., 414; Sale v. McLean, 29 Id., 612; Crane v. Randolph, 30 Id., 579.
We cannot presume in favor of the plaintiffs possession, since an issue upon this point was tendered by the answer, and he failed to meet it by proof. It was a jurisdictional fact.
If, however, Lawrence is not in possession (in which case Zimpleman could not, of course,bring ejectment against him) * still this bill cannot be maintained. The rule is that before a court of equity will interfere to remove a cloud, the title of the adverse claimant must be good upon its face, and it must be necessary to resort to extrinsic evidence to establish its invalidity. Chaplin v. Holmes, supra; Allen v. City of Buffalo, 39 N. Y., 390; Marsh v. City of Brooklyn, 59 Id., 282; Moore v. Cord, 14 Wis., 213.
Now, although Lawrence’s tax deed is assailed, upon the grounds that the taxes had been paid before sale, and the illegality of the sale for that reason depends upon an exter- . nal fact, yet it also appears from the deed exhibited that his title is worthless, and that any attempt to assert it by action would fall by its own weight, without proof in rebuttal. All of the tax sales made in the year 1873, for the taxes of 1872, are void, as held in Vernon v. Nelson, 33 Ark., 748. Moreover, it appears from the recitals of the tax-deed that two tracts of land were sold together, for the taxes due on the- . whole. Such a deed casts no cloud upon the owner’s title. Crane v. Randolph, supra; Pettus v, Wallace, 29 Ark., 476; Pack v. Crawford, 29 Ark., 489; Montgomery v. Birge, 31 Ark., 491; Walker v. Moore, 2 Dillon, 256.
The case of Hamilton v. Cummings, 1 Johnson’s Ch’y., 517, cited, by Zimpleman’s counsel, in support of the proposition that equity will decree the cancellation of a deed void upon its face, is no longer law in the State of New York, having been overruled by Cox v. Clift, 2 Comstock, 118; Scott v. Onderdonk, 14 N. Y., 14; Ward v. Dewey, 16 Id., 529; Crook v. Andrews. 40 N. Y., 547; Guest v. City of Brooklyn, 69 N. Y., 513.
Besides, there are gaps in Zimpleman’s title, which cannot overlook. It is true that only those whose titles are beclouded need the relief that is here sought, and the act of filing the bill presupposes some obscurity of the title. But it ought to appear that if the cloud raised by the defendant’s unfounded claim were removed, the plaintiff would then have a reasonably clear title. Zimpleman must succeed, if at all, upon the- strength of his own title, and cannot rely upon the weakness of his adversary’s.
He exhibits two chains of title. The links of the first chain are, a patent deed of the United States to John Dupas, of’Hot Spring county, in Arkansas, issued in 1855 ; a letter of attorney, from Marie Kaufman, of Alsace, in Germany, who claimed to have been the widow of John Baptist Dupas, and the guardian of his minor children, authorizing Victor Lasaque to sell and convey real estate of the said Marie Kaufman and the said infants. This power, executed in 1875, in the German language, was acknowledged before a notary in Strasbourg and appears in the transcript as translated by a notary in Chicago. Under it Lasaque conveyed to Hanna and Chase, they to Howard, and Howard to Zimpleman.
Passing over imperfections in the acknowledgment of these instruments, there is no allegation or proof of the death of the original patentee, or that Marie Kaufman and her children are his widow and heirs, or that she is the legal of those heirs. Assuming all of these things to be true, she had no interest in the land except her dower, and even this she could not convey to a stranger before allotment. Carnall v. Wilson, 21 Ark., 62; Jacoway v. McGarrah, 21 Ark., 347; Jacks v. Dyer, 31 Ark., 334. Nor had she any right to sell the lands of her wards without license from a court of competent jurisdiction.
The head of the second chain of title is a collector’s deed to Jacob Kempner, pursuant to a tax sale of March 9th, 1868, for the taxes of the three preceding years. And this followed by sundry mesne conveyances, connecting Zimpleman with this source of title.
.This tax sale was had under the provisions of the revenue law contained in Gould’s Digest, chapter 148 ; by virtue of which the collector’s deed was only evidence of the truth of its own recitals. No attempt was made to supplement the deficiencies of the deed by proof aliunde.
Now there is no recital that the sheriff filed in the clerk’s office his assessment list for either of those years, or that the County Court ever corrected or adjusted said assessment, or that the clerk ever made out a tax-book, or attached a warrant thereto, or delivered it to the sheriff. For vices like some of these, the tax-deed was overruled in Haney v. Cole, 28 Ark., 299.
The judgment of the court below is reversed and the bill is dismissed. | [
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English, C. J.
On the ninth of June, 1877, A. Nathan & Co., a firm of merchants of Pine Bluff, who were unable to pay their debts, executed a general deed of assignment, by which they conveyed to Samuel Franklin, as trustee, their stock of goods, wares, merchandise, dioses in action, etc., for the benefit of all their creditors.
Franklin took possession of the goods embraced in the deed, kept them in the house where A. Nathan & Co. had been doing business, and for a month or more was disposing of them for the benefit of creditors, but business becoming dull, he boxed up the remainder of the goods and stored them in a warehouse.
It appears that all of the creditors accepted the provisions of the deed of assignment, except W. W. Thatcher and Numsen & Sons, who brought suits before a Justice of the Peace against A. Nathan & Co., obtained judgments, sued out executions thereon, placed them in the hands of Anthony Johnson, constable, who levied upon the goods in the warehouse, took possession, and advertised them for sale.
On the eighteenth of August, 1877, Franklin, who had not filed a schedule of the goods, and executed bond as trustee, as required by the statute regulating assignments, brought this action of replevin in the Circuit Court of Jefferson county against Johnson for the goods levied on, and obtained possession of them by means of the writ.
After Johnson had answered the. complaint, on his motion the execution creditors were made co-defendants, and adopted his answer. Tinder the instructions of the Court, the plaintiff, on the evidence, obtained a verdict, and judgment that he retain the goods, etc. A new trial was refused the defendants, and they took a bill of exceptions, and appealed.
I. In the absence of fraud, on the execution and delivery of the deed of assignment to the trustee, the title to the goods vested in him; and so far the Court correctly charged the jury.
II. The deed was an absolute conveyance, and not a' J mortgage or ordinary trust deed, with a defeasance, and the title to the goods vested in the trustee, not only as against the assignors, but also as against the execution creditors without registration, and the Court so rightly charged the jury-'
ni. But though the deed vested the legal title to the goods in the trustee, yet by the express language of the gtatute regulating assignments, ( Gantt’s Digest, secs. 385, 387) before he was entitled to take possession, sell or in any way manage to control the property assigned, he was obliged to file the schedule, and execute the bond required by the act. Clayton v. Johnson, 36 Ark., 406.
To maintain replevin for goods, the plaintiff must not only have title, general or special, in them, but must be entitled to immediate possession thereof. Gantt’s Digest, sec. 5035; Beebe v. DeBaun, 8 Ark., 510; Wallace v. Brown, 17 Ib., 450.
This case differs from the case of Clayton v. Johnson, sup. In that case the trustee filed the schedule, and executed bond before he brought replevin, as provided by the statute. In this case it appears that the trustee paid no attention to the statute.
The Court below erred in refusing to charge the jury as moved by appellants, in effect, that plaintiff having failed t0 /pe the schedule, and give bond as required by the statute, could not maintain replevin for the goods.
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Sam Bird, Judge.
Appellant Davey Lee appeals from the judgment of the Union County Circuit Court holding him in contempt for nonpayment of child support, granting the Office of Child Support Enforcement (OCSE) judgment for $7,132 in unpaid child support, and setting his support obligation at $40 per week. The $40-per-week sum represented a downward deviation from the $72-per-week sum provided by application of the child-support chart. Appellant raises five points for reversal. OCSE cross-appeals from the trial court’s decision to deviate downward from the child-support chart. We affirm on both direct appeal and cross-appeal.
Appellant and appellee Patricia Lee were divorced by decree of the Union County Chancery Court entered on July 25, 2000. The decree awarded Patricia custody of the parties’ two minor children and ordered appellant to pay child support of $58 per week.
In October 2001, the Lees’ minor children were injured in an explosion at Patricia’s home. The Lees filed a suit seeking damages for the children in the Union County Circuit Court. The case was settled, and a special-needs trust was created for the children with Liberty Bank of Arkansas serving as trustee.
OCSE intervened in the divorce case and filed a motion seeking to modify appellant’s support obligation and to hold appellant in contempt for nonpayment of support. Appellant denied the material allegation of the petition. Prior to trial, appellant issued a subpoena to the bank seeking “financial account and/or trust records for the last three years concerning Patricia A. Lee. . . .” The bank filed a motion to quash the subpoena, alleging that the records had been ordered sealed in the earlier tort case. Appellant asserted that the motion to quash should be denied because the order sealing the records did not extend to the records sought.
After a hearing, the trial court granted the motion to quash by order entered on February 9, 2005. The trial court found that the purpose of the subpoena was to determine the assets and income available to the minor children and whether the bank had provided appellant with a complete list of all income or payments received by Patricia or the minor children. The court concluded that appellant had received all information necessary for the court to make a determination as to whether there should be a deviation from the child-support chart.
Appellant filed a “Motion for Reconsideration/New Trial and Motion for Findings of Fact and Conclusions of Law” on February 22, 2005. The motion sought findings of fact and conclusions of law regarding the following: the reasons that the records were sealed; whether the sealing of the records applied to records subsequently created by the bank for purposes of administering the special-needs trust; why the release of subsequently created documents would violate the order sealing the records; how the bank met its burden of showing good cause to quash the subpoena; how the records were not relevant to a requested deviation from the child-support chart; and how the release of the records would harm the special-needs trust. On March 16, 2005, the trial court denied the motion as being without merit and as untimely filed under Ark. R. Civ. P. 59(b).
At trial, appellant admitted that he had an arrearage of $12,132 but stated that he and Patricia had an agreement whereby he would not have to pay child support. He said that she told him that he “would not have to worry about child support anymore.” He identified a document, signed by Patricia, requesting that the child-support case with OCSE be closed. Appellant stated that he was working, earning $7 per hour for a forty-hour week. He stated that he had a wife and two children, ages two and four, living at home with him. He also admitted receiving $250,000 as his share of the settlement from the accident involving his older children but stated that he did not put that money in the bank. He added that $150,000 in cash from that settlement, a vehicle, and a motorcycle were stolen from his home.
According to appellant, he paid $5,000 for food and clothing for the children. He asserted that the children were removed from Patricia’s custody in 2002 due to her inability to care for them after the explosion. Appellant also claimed that he should not have to pay support for the period the children were not in Patricia’s custody. He said that, in addition to the $5,000 previously mentioned, he paid more than $2,000 during the fifteen-month period the children were in foster care. However, he did not have receipts for these payments. He said that the children received $1,500 per month in disability from social security and $6,000 per month from the special-needs trust. According to appellant, the trust was worth approximately $1 million and paid for all of the household expenses. He added that the children’s total estate was valued between $15 to $17 million. He stated that he did not think it was fair for him and his new family to suffer by his paying child support when the children’s needs were met by the trust.
After the hearing, the trial court announced its findings from the bench and found that appellant was previously ordered to pay child support of $58 per week and that appellant admitted an arrearage of $12,132. The court gave appellant credit for $5,000 in previous payments. This resulted in a net judgment of $7,132. The trial court found that appellant was not entitled to credit for payments from the special-needs trust because it was not created with funds provided by appellant. The trial court found, based on the child-support chart, that appellant should pay $72 per week in current support. Because the children were receiving $1,500 per month from social security and $6,000 per month from the special-needs trust, the court concluded that a deviation from the child support was warranted and that such a deviation would not adversely affect the children. In deciding to deviate from the chart, the court also noted that appellant had two other biological children residing with him. The court then set child support at $40 per week, plus $8 per week on the arrearage. An order based on the trial court’s oral findings was entered on July 1, 2005. Appellant filed a timely notice of appeal, and OCSE filed a timely notice of cross-appeal.
Appellant raises five points on appeal: (1) that the trial court erred when it held that the income from the special-needs trust would not be credited against appellant’s support obligation; (2) that the trial court erred in not considering Patricia Lee’s request to close her child-support case and that she did not have custody of the minor children for an extended period of time, and that appellant detrimentally relied on Patricia Lee’s request in stopping child support; (3) that the trial court erred in setting appellant’s support obligation at $40 per week; (4) that the trial court erred in quashing a subpoena for the records of the trust from the bank; and (5) that the trial court erred when it denied as untimely appellant’s motion seeking findings of fact as to the trial court’s decision to grant the bank’s motion to quash. On cross-appeal, OCSE argues that the trial court erred in deviating downward from the child-support chart.
Child-support cases are reviewed de novo on the record. Paschal v. Paschal, 82 Ark. App. 455, 117 S.W.3d 650 (2003). It is the ultimate task of the trial judge to determine the expendable income of a child-support payor. Cole v. Cole, 82 Ark. App. 47, 110 S.W.3d 310 (2003). This income may differ from income for tax purposes. See Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002). As a rule, when the amount of child support is at issue, the appellate court will not reverse the trial judge absent an abuse of discretion. McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001); Paschal, supra.
In setting the amount of child support that a noncustodial parent must pay, reference to the most recent child-support chart is mandatory. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). The family-support chart is more accurately identified as Section VII of Supreme Court Administrative Order 10, In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 347 Ark. Appx. 1064 (2002). Administrative Order Number 10 sets out the definition of income for child-support purposes and the manner of calculation of support. It also lists factors that the court should consider when determining support at variance to the chart. Although the court must consider the chart, it does not have to use the chart amount if the circumstances of the parties indicate that another amount would be more appropriate. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000); Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992); see also Ark. Code Ann. § 9-14-106 (2002).
Appellant first argues that the trial court erred in not crediting the amount that the children receive from the special-needs trust against his support obligation. In Hinton v. Hinton, 211 Ark. 159, 199 S.W.2d 591 (1947), the supreme court held that military allotments assigned to a child could be credited toward the father’s child-support obligation. In Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348 (1962), the court held that a father was entitled to credit social security retirement benefits received by the child against the father’s child-support payments. In so holding, the court observed that such benefits were not gratuitous but earned, and the court was persuaded that the equities tipped in favor oif allowing credit to the father under the circumstances of the case. However, in Thompson v. Thompson, 254 Ark. 881, 496 S.W.2d 425 (1973), the supreme court held that college educational benefits for a disabled veteran’s children represented a specialty item to be used only under specified circumstances and could not be credited toward the veteran’s child-support payments. Other courts have held that a child’s receipt of social security benefits would not be considered in determining the basic child-support obligation because they are not income to the obligor; however, the trial court may consider such benefits in deciding whether to deviate from the guidelines. See Ouellette v. Ouellette, 687 A.2d 242 (Me. 1996); Drummond v. State ex rel. Drummond, 350 Md. 502, 714 A.2d 163 (1998).
Here, appellant essentially is asking that the children be ordered to support themselves from their own funds instead of his being required to do so. The funds were not earned by appellant and are not a substitute for his earnings because of a disability. They are the result of an award of damages for the benefit of the children, who were involved in an unfortunate accident. These funds will be needed to support the children throughout the rest of their lives. We do not know from the evidence presented the nature and extent of the children’s injuries and what future needs they might have. A parent has a legal and moral duty to support and educate his child and to provide the necessities of life even though the child has sufficient property to do so. See Alcorn v. Alcorn, 183 Ark. 342, 35 S.W.2d 1027 (1931). Additionally, in the present case, the testimony clearly shows that appellant is able to work. Therefore, appellant has a duty to support his children. We affirm on this point.
In his second point, appellant argues that the trial court erred in not considering his agreement with Patricia that he did not have to pay support or his assertion that the children were not in her custody the entire period of time for which the arrearages were sought. We disagree.
Appellant relies on the closure form signed by Patricia as evidence that he and she had an agreement for him not to pay child support. First, the form does not, by itself, indicate an agreement. It was simply a request by Patricia that OCSE close her case. Appellant was not involved in that request. However, it does tend to corroborate appellant’s testimony because it indicates that Patricia no longer wanted OCSE to collect child support for her. Second, it has long been the law in Arkansas that the interests of a minor, such as in receiving support, cannot be compromised by a guardian without approval by the court. Davis v. Office of Child Support Enforcement, 322 Ark. 352, 908 S.W.2d 649 (1995). Our supreme court has further provided that:
It is not sufficient that a court be made aware of a compromise agreement and that it is agreeable to the guardian; rather, the court must make a judicial act of investigation into the merits of the compromise and into its benefits to the minor. Any judgment by a court that compromises a minor’s interest without the requisite investigation is void on its face.
Id. at 355-56, 908 S.W.2d at 651-52. Here, there is no proof that the “agreement” was ever presented to or approved by the trial court. Therefore, we cannot say that the trial court erred in fading to consider any agreement that appellant not pay child support.
As for appellant’s contention that he should not have to pay support for the period that the children were in foster care, the trial court did give appellant credit for $5,000 in payments even though he did not show any receipts. This sum exceeds the total amount of support due for the period the children were in foster care. Therefore, appellant received the relief he is now requesting. We affirm on this point.
Because appellant’s third point and OCSE’s cross-appeal both concern the ultimate amount of appellant’s support obligation, we discuss them together. Both points assert that the trial court erred in setting appellant’s support obligation at $40 per week. Appellant argues that he should not have to pay any support because the children were receiving $1,500 per month from social security and $6,000 from the trust, and OCSE argues that the trial court erred in considering the children’s social security benefits and the distribution from the trust in deviating from the child-support chart.
Section V of Arkansas Supreme Court Administrative Order No. 10 sets forth the following factors to be considered when deviating from the amount set by the chart; food, shelter and utilities, clothing, medical expenses, educational expenses, dental expenses, child care (including day care or other expenses for supervision of children necessary for the custodial parent to work), accustomed standard of living, recreation, insurance, transportation expenses, and other income or assets available to support the child from whatever source. Section V then lists what are called additional factors and include the procurement and maintenance of life insurance, health insurance, dental insurance for the children’s benefit; the provision or payment of necessary medical, dental, optical, psychological or counseling expenses of the children; the creation or maintenance of a trust fund for the children; the provision or payment of special-education needs or expenses of the child; the provision or payment of day care for a child; the extraordinary time spent with the noncustodial parent, or shared or joint custody arrangements; the support required and given by a payor for dependent children, even in the absence of a court order; and where the amount of child support indicated by the chart is less than the normal costs of child care.
Our supreme court has held that state courts are prohibited by federal law from ordering child-support payments from SSI benefits. Davie v. Office of Chüd Support Enforcement, 349 Ark. 187, 76 S.W.3d 873 (2002); Davis v. Office of Child Support Enforcement, 341 Ark. 349, 20 S.W.3d 273 (2000). However, while the supreme court has held that child support cannot be ordered paid from SSI benefits, the supreme court has not held that a trial court cannot consider those benefits in determining whether to deviate from the child-support chart. The guidelines specifically allow consideration of “other income or assets available to support the child from whatever source” and the creation of a trust for the children as factors in deciding to deviate from the child-support chart. See Section V, supra.
On this point, appellant repeats much of his argument that he is entitled to credit for the full amount the children receive from social security. This court has rejected the argument that a noncustodial parent is entitled to a downward deviation from the child-support amount provided by the child-support chart on the ground that the amount exceeds a child’s actual needs. Ceola v. Burnham, 84 Ark. App. 269, 139 S.W.3d 150 (2003). The amount of child support lies within the discretion of the court and the court’s findings will not be disturbed on appeal, absent a showing of an abuse of discretion. Id. We cannot say that the trial court abused its discretion in setting appellant’s support obligation at $40 per week.
Appellant contends as his fourth point that the trial court erred in quashing a subpoena for the trust records from the bank. It is well established law that a trial court has broad discretion in matters pertaining to discovery, and the exercise of that discretion will not be reversed by this court absent an abuse of discretion that is prejudicial to the appealing party. Ballard v. Martin, 349 Ark. 564, 79 S.W.3d 838 (2002). Much of appellant’s argument is devoted to the proposition that the order sealing the settlement records does not extend to records created after the settlement for the purpose of administering the trust. Even if appellant is correct in this assertion, he does not explain how he was prejudiced by the inability to obtain the subpoenaed financial information. The issue before the trial court to which the requested information was relevant was a deviation in the amount of child support to be paid. The trial court granted the requested deviation, based in part on appellant’s testimony that the children received $6,000 per month from the special-needs trust. Appellant cannot show how the result would have been different had he received the requested information. We will not reverse without a showing of prejudice. Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993).
In his fifth point, appellant argues that the trial court erred when it denied as untimely his motion seeking findings of fact as to the motion to quash the subpoena to the bank. The order granting the motion to quash was filed on February 9, 2005, and appellant filed his “Motion for Reconsideration/New Trial and Motion for Findings of Fact and Conclusions of Law” on February 22, 2005. On March 16, 2005, the trial court denied the motion as being both without merit and untimely filed under Ark. R. Civ. P. 59(b). Citing Ark. R. Civ. P. 6(a), appellant argues that the motion was timely. A short answer to this point is that, by the plain terms of Ark. R. Civ. P. 52(a), findings offact and conclusions oflaw are unnecessary on decisions of motions under the rules. Subpoenas are governed by Ark. R. Civ. P. 45. That rule, in subsection (b)(1), provides that the court, upon motion made prior to the time specified in the subpoena for compliance, may quash or modify the subpoena if it is unreasonable or oppressive. Therefore, the motion to quash was a “motion under these rules” within the meaning of Rule 52(a), and findings of fact and conclusions of law are not required.
Affirmed.
Neal and Baker, JJ., agree.
See also, eg, Office of Child Support Enforcement v. Harris, 87 Ark. App. 59, 185 S.W.3d 120 (2004); Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002); Cantrell v. Cantrell, 10 Ark.App. 357, 664 S.W.2d 493 (1984). | [
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Olly Neal, Judge.
In this appeal from the Arkansas Workers’ Compensation Commission (Commission), appellants, Holland Group Incorporated and Royal 8c Sunalliance Insurance Company, argue that the Commission’s decision to award appellee Brenda Hughes benefits was not supported by substantial evidence because her ulnar-neuropathy injury was not the major cause of her disability or need for treatment nor was it caused by rapid repetitive motion. In the alternative they argue that, even if the injury was compensable, it was the result of an aggravation of the June 21, 1999, injury rather than a recurrence. Appellees Brenda Hughes and Travelers Insurance Company maintain that the Commission’s decision is supported by substantial evidence; however, Hughes has filed a cross appeal in which she asserts that the Commission’s denial of her claim for a cervical injury was not supported by substantial evidence. We reverse and remand on direct appeal and affirm on cross appeal.
Hughes has been employed at Holland (formerly Binkley Industries) for over nine years. Her job entails working on a seat-rise jig, which is used to build small tractor-trailer parts. On June 21, 1999, Hughes sustained a compensable left-hand-carpal-tunnel injury and underwent surgery that was performed by Dr. P.B. Simpson, Jr. After a six-week recovery period, Hughes returned to Holland. She testified that, once she returned to the seat-rise jig, she began to experience pain again in her left arm and hand. The pain, she explained, was in her left arm and wrist and then went “all the way into my neck and shoulder.” Thereafter, she sought treatment and an additional award of benefits.
At the hearing before the administrative law judge (ALJ), Hughes claimed that she sustained a compensable injury on February 28, 2003, for which she is entitled to reasonably necessary medical treatment and temporary-total-disability benefits. Appellants maintained that Hughes did not sustain a compensable injury but argued in the alternative that, if she did, appellee Travelers Insurance Company rather than they would be liable for compens-ability because the February 28 incident would constitute a recurrence of the June 21, 1999, injury. Travelers responded that the new injury was an aggravation or a new injury; therefore, liability would rest with appellants. The ALJ determined that Hughes’s February 28, 2003, injury was a recurrence for which Travelers was responsible and that Hughes was entitled to additional treatment and temporary-total-disability benefits. Travelers appealed to the Commission. After its de novo review, the Commission reversed the decision of the ALJ, instead finding that Hughes sustained a compensable ulnar nerve injury which became manifest while appellants were “on the risk”; that appellants were liable for reasonably necessary medical treatment; that Hughes did not sustain a compensable neck injury; and that Hughes did not prove she was entitled to temporary-total-disability benefits. It is from this decision that appellants and appellee/cross-appellant Hughes appeal.
In appeals involving claims for workers’ compensation, our court views the evidence in a light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. Wallace v. West Fraser South, Inc., 365 Ark. 68, 225 S.W.3d 361 (2006). Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. Foster v. Express Personnel Servs., 93 Ark. App. 496, 222 S.W.3d 218 (2006). The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm the decision. See Fayetteville Sch. Dist. v. Kunzelman, 93 Ark. App. 160, 217 S.W.3d 149 (2005). Where the Commission denies a claim because of the claimant’s failure to meet his burden of proof, the substantial evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Wallace, supra. The Commission is not required to believe any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Brotherton v. White River Area Agency, 93 Ark. App. 432, 220 S.W.3d 219 (2005). The Commission may accept or reject medical opinions and determine their medical soundness and probative force. Id.
Appellants argue first that the Commission’s decision was not supported by substantial evidence because Hughes’s injury was neither the major cause of her disability nor the result of rapid repetitive motion. In the alternative, appellants contend that, if the injury was compensable, it was an aggravation of appellee’s old injury, for which appellee Travelers would ultimately be liable. We need not reach appellants’ argument as to whether or not Hughes’s injury was the major cause of her disability or whether it was an aggravation or a recurrence because we hold that the Commission’s decision that her injury was the result of both rapid and repetitive motion is not supported by substantial evidence.
Arkansas Code Annotated section 11-9-102(4) (A) (Repl. 2002) defines a compensable injury as:
(i) An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence;
(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition;
(b) A back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence[.]
A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2002). A claimant seeking workers’ compensation benefits for a gradual-onset injury must prove by a preponderance of the evidence that (1) the injury arose out of and in the course of his or her employment; (2) the injury caused internal or external physical harm to the body that required medical services or resulted in disability or death; and (3) the injury was a major cause of the disability or need for treatment. Axk. Code Ann. § 11-9-102(4)(A)(ii) and (E)(ii) (Repl. 2002).
In analyzing whether an injury is caused by rapid repetitive motion, the standard as set out in Malone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W.2d 644 (1988), is a two-pronged test: (1) the tasks must be repetitive, and (2) the repetitive motion must be rapid. As a threshold issue, the tasks must be repetitive, or the rapidity element is not reached. Westside High Sch. v. Patterson, 79 Ark. App. 281, 86 S.W.3d 412 (2002). Arguably, even repetitive tasks and rapid work, standing alone, do not satisfy the definition; the repetitive tasks must be completed rapidly. Id. The issue of whether an injury meets the rapid repetitive motion requirement will ordinarily be a question of fact, not one of law; however, although a question of fact, the Commission must apply the appropriate law to the evidence to reach a conclusion. Id.
Here, the Commission’s finding of rapid and repetitive motion was based partly on evidence from Dr. Frazier that Hughes’s duties included “assembly line” work involving “repetitive grasping or lifting activities,” which she might elect to leave for a “less repetitive type activity.” The Commission also relied on Hughes’s credible and extensive testimony concerning her duties as a welder. Hughes testified that:
When working on the seat-rise jig, we have two side plates. We put the bottom plate in the jig, then take two side plates and I tack them in, and I’ve got two wire pads that I put one in the front and one in the back. I then take and mash the jig together, then I take the hammer and beat it until I know its right, and then I take the welding machine and tack one, two, three, one on each side and the bottom on the front and back. I do all this with my hands. I then turn the jig around and tack the back part, then when I turn it back around, I take it out. There are different sizes ofjigs. The heaviest size is 0-8’s which I assume would weigh approximately five to ten pounds. I do this kind of work all day, every day.
In determining whether a worker’s injury was the result of repetitive and rapid motion, the appellate courts have required some showing of how rapidly the repetitive actions were performed. See Hapney v. Rheem Mfg. Co., 342 Ark. 11, 26 S.W.3d 111 (2000) (Commission’s denial of benefits reversed where movements repeated every twenty seconds); Parker v. Atlantic Research Corp., 87 Ark. App. 145, 189 S.W.3d 449 (2004) (where the Commission found that appellant’s job duties fell within the meaning of rapid repetitive motion, considering the multiple tasks that she was required to perform at high volume and with quick and fast movements in a repetitive nature over the course of a sometimes ten-to-twelve hour shift, six to seven days a week, there was substantial evidence to support the Commission’s finding that appellant’s job duties required rapid repetitive motion); Boyd v. Dana Corp., 62 Ark. App. 78, 966 S.W.2d 946 (1998) (a series of repetitive motions, performed 115 to 120 times per day separated by periods of only 1.5 minutes, constituted rapid motion within the meaning of the statute); High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998) (movements repeated every fifteen seconds found to be sufficiently “rapid”).
In the instant case, although Hughes’s testimony undoubtedly evidences that her work activities were repetitive, there is no evidence in this record to indicate that these activities were performed rapidly. Therefore, as reasonable minds could not reach the decision of the Commission, substantial evidence does not support its decision, and we are compelled to reverse and remand.
On cross appeal, Hughes argues that the Commission erred in determining that her neck injury was not compensable. She argues that her neck injury was the result of the specific incident that occurred on February 28, 2003. In the alternative, however, Hughes argues that her neck injury was the result of rapid and repetitive motion, an exception to the requirement of specific time and place. There is no merit in either of these assertions.
Hughes’s own testimony reflected that, on February 28, 2003, every time she would get ready to put a part in the jig, she would experience pain shooting up her arm. The pain, according to Hughes, was different that day because it traveled up to her neck and shoulders. This testimony did not identify a specific incident occurring nor did Hughes tell her treating physician that her pain was associated with any particular, specific incident. Thus, her own words belie the argument that the injury was caused by a specific, identifiable incident. Furthermore, because we have determined that there is no evidence that Hughes’s work activities were rapid, her neck injury did not result from a gradual-onset injury.
Reversed and remanded on direct appeal; affirmed on cross appeal.
Glover and Roaf, JJ., agree. | [
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Robert J. Gladwin, Judge.
This is an appeal from an order in which the Yell County Circuit Court appointed appellee Sandra O’Reilly permanent guardian of the person and estate of Harold W. Phillipy. Mr. Phillipy’s son, appellant A.W. Phillipy, argues that the trial court’s July 22, 2005 order is void and that there was insufficient evidence to support the trial court’s finding that his father is incapacitated. We dismiss based upon appellant’s lack of standing to bring this appeal.
Appellant and appellee were married at one point in time, but later divorced. Subsequently, appellee was purportedly adopted by her ex-father-in-law, Mr. Phillipy, in the State of Florida in April 2005, specifically for the purpose of giving her legal authority to serve as his guardian. Mr. Phillipy, who was born on June 1, 1916, suffers from numerous medical conditions, including high blood pressure and diabetes, which require six different prescription medications and two types of insulin to maintain his health. He is also reportedly visually and hearing impaired. At the time of this case, Mr. Phillipy had moved to Yell County, Arkansas, and was residing with appellee until appellant “secreted” him away to Montana.
On June 1, 2005, appellee filed a petition in the Yell County Circuit Court for an ex parte temporary appointment of guardian and permanent guardianship of the person and estate of Mr. Phillipy. She contended that the temporary guardianship was necessary to protect Mr. Phillipy, who was “abducted” on May 21, 2005, by appellant, from whom he was allegedly estranged, and “secreted away” in Montana. On June 2, 2005, the trial court entered a temporary order appointing appellee guardian of Mr. Phillipy. On June 28, 2005, attorney Bill Strait entered his appearance as Mr. Phillipy’s retained counsel. On July 12, 2005, Mr. Phillipy executed and caused to be filed a consent to guardianship with appellee to serve as his guardian. On July 22, 2005, the trial court conducted a hearing, during which neither testimony nor a report evidencing Mr. Phillipy’s alleged incapacity was offered. Mr. Strait advised the trial court that Mr. Phillipy fully consented to the guardianship. The order appointing appellee as permanent guardian was filed on July 22, 2005, and appellant filed a notice of appeal on August 18, 2005.
Guidance on standing is provided by three recent cases from our supreme court that cite In re $3,166,199, 337 Ark. 74, 987 S.W.2d 663 (1999). In that case, the supreme court reiterated the general rule regarding standing, “that an appellate court cannot act upon an appeal taken by one not a party to the action below.” Id. at 79, 987 S.W.2d at 666. Under our rules of civil procedure, party status is generally obtained by initiating an action through filing a complaint or responding to a complaint by answer. Id.; see also Cogburn v. Wolfenbarger, 85 Ark. App. 206, 148 S.W.3d 787 (2004) (finding standing where an individual was served with notice of a hearing, filed an answer, and appeared at both the temporary and permanent hearings to contest the guardianship). It is also possible to become a party by intervention under Ark. R. Civ. P. 24 (2005), or by joinder under Ark. R. Civ. P. 19 (2005). In re $3,166,199, supra; see also Beebe v. Fountain Lake School Dist., 365 Ark. 536, 231 S.W.3d 628 (2006) (finding standing based on collective basis related to prior party status, intervention, and constitutionality of a statute). In this case, none of these situations apply to appellant; therefore, he does not have standing as a party to the action to bring this appeal.
Arkansas appellate courts have recognized two other circumstances in which a nonparty may gain standing to pursue appellate review of a trial court’s orders. The first occurs when a nonparty seeks relief under Ark. R. Civ. P. 60(k) (2005), which provides that an independent action may be filed to relieve a person from judgment who was not actually served with process. In re $3,166,199, supra. Appellant is not seeking this type of relief, as nothing was required of him pursuant to the trial court’s order, so this exception is likewise inapplicable.
The final possible scenario would apply in the unique set of facts where any appellant, though not a party, has a pecuniary interest affected by the court’s disposition of the matter below. In Swindle v. Benton County Circuit Court, 363 Ark. 118, 211 S.W.3d 522 (2005), our supreme court determined that an appellant had standing based upon this “pecuniary interest” exception where he was ordered by the circuit court to reimburse the public defender’s office $150 for interpreting services that were provided to his Spanish-speaking client. The trial court had stated that the appellant was privately retained by his client and that it was his responsibility to make sure that the fee was paid. The supreme court addressed the standing issue, although it was not raised by the appellee, and found that because the costs were assessed against the appellant personally, he had standing as a nonparty to request appellate review. Additionally, in Springdale School Dist. No. 50 v. The Evans Law Firm, P.A., 360 Ark. 279, 200 S.W.3d 917 (2005), the supreme court determined that an attorney had standing to bring an appeal related to the circuit court’s disposition of his attorney’s fee in a case. The supreme court first pointed out that the attorney had specifically intervened with respect to the attorney’s fee issues, and that would likely have been sufficient; however, the supreme court also addressed the fact that his direct pecuniary interest gave him standing to bring the appeal with respect to the attorney’s fee issue.
Based upon our review of the instant case, appellant has no pecuniary interest in this matter through which to gain standing. Appellant fails to fit into any of the above-described categories. He clearly was neither initially, nor subsequently, a party to the circuit court proceeding. He did not move to intervene and did not enter an appearance in the case. No judgment was entered against him from which he would be seeking relief. Additionally, he does not appear to have a pecuniary interest in the circuit court’s order. Although he did not receive prior notice of the hearing on the petition, he nonetheless was required to pursue any dispute that he might have had with the order at the circuit court level. He failed to do so by any of the available means, including making himself a party to the action, filing a posttrial motion asking for a new trial or a judgment notwithstanding the verdict, or requesting that the appointment be set aside because he failed to receive notice prior to the hearing. Accordingly, this appeal is dismissed for lack of standing.
Appeal dismissed.
Griffen and Neal, JJ., agree.
We use the term “purportedly” because the copy of the final judgment of adoption from the Florida proceeding contained in the Addendum is not signed or dated.
At the time appellee filed her original petition, another similar petition, filed by Mr. Phillipy’s nephew, Paul Schopbach, was pending in Florida. That petition was later withdrawn. | [
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Karen R. Baker, Judge.
This appeal is brought from the dismissal of a post-decree motion filed by appellant Kenneth Connally against his former wife, appellee Catherine Connally. The trial court ruled that Kenneth did not properly serve the motion on Catherine. Kenneth now appeals that riding and argues that service was proper. We disagree and affirm.
The parties were divorced in 1997. Prior to entry of the divorce decree, they executed an agreement wherein Catherine would retain two particular business entities and would pay Kenneth forty-nine percent of the net sale proceeds if she sold them within five years. The agreement was “incorporated [into the divorce decree] but not merged” with it.
On June 11, 2004, Kenneth filed a motion to enforce the agreement using the caption and docket number of the 1997 divorce case. He alleged that Catherine had sold the aforementioned businesses and owed him at least $178,000, and he asked that she be ordered to account for the sale proceeds and pay all sums due him.
The certificate of service accompanying Kenneth’s motion indicated that he mailed it to the attorney who had represented Catherine in the 1997 divorce. The attorney filed a response asking that the motion be dismissed because Catherine was now a resident of Canada and did not consent to service in Arkansas or service upon her attorney. Thereafter, Kenneth attempted service by the three means that are the subject of this appeal: 1) by mail; 2) by commercial courier; 3) by personal service.
Service by mail was attempted on July 8, 2004, when Kenneth mailed the motion and accompanying papers to Catherine at her address in Toronto, Canada, via “Registered Mail Return Receipt Requested.” Canadian Postal Service tracking information indicates that the mail was “successfully delivered” to the subject address on July 23, 2004; however, no postal receipt was available to show who signed for the package. The trial court rejected this attempt at service, after which Kenneth sent a renewed motion to Catherine’s Toronto address by Federal Express. A tracking document shows that this package was delivered and signed for by someone named Juan.
Finally, Kenneth employed a Canadian process server to personally serve the renewed motion on Catherine. The server’s affidavit recites that he attempted to serve Catherine between December 16, 2004, and January 7, 2005. According to him, he first went to Catherine’s home address, which was a secured condominium. The guard telephoned Catherine’s residence but received no reply; the server left his business card with the guard “requesting that [Catherine] contact me to arrange for delivery of legal documents.” Next, the server telephoned Catherine at work and spoke with her personally. According to him, he identified himself and asked to “set up an appointment with herself such that I may effect service of the attached documents,” and Catherine said that she would call him back, but she did not. Thereafter, the server went to Catherine’s condominium complex on two more occasions and left his card requesting that she contact him for delivery of legal documents. Finally, he attempted to serve her at a work address that had been provided to him by Kenneth’s attorney but, upon arriving, was advised that Catherine no longer worked there. The server concluded his affidavit by stating that he believed that Catherine was evading service.
On February 24, 2005, Catherine moved to dismiss Kenneth’s renewed motion on the basis that it still had not been properly served on her. Following a hearing to resolve the issue, the trial court dismissed Kenneth’s renewed motion due to insufficiency of service. Kenneth now appeals from that order.
Kenneth contends that his attempts at service by mail, commercial courier, and personal delivery complied with Rule 5 of the Arkansas Rules of Civil Procedure. Rule 5 governs service of papers filed subsequent to the complaint. Ark. R. Civ. P. 5(a) (2005). Generally, papers filed subsequent to the complaint are served on a party’s attorney. Ark. R. Civ. P. 5(b)(1). However, if the action is one in which final judgment has been entered and the court has continuing jurisdiction, service shall be upon the party. Id. Rule 5(b)(3) sets out special requirements where, in a post-decree, continuing-jurisdiction case, service is made on a party by mail or commercial delivery:
If a final judgment or decree has been entered and the court has continuing jurisdiction, service upon a party by mail or commercial delivery company shall comply with the requirements of Rule 4(d)(8)(A) and (C), respectively.
Although Rules 4(d)(8)(A) and (C) of the Arkansas Rules of Civil Procedure govern service of summonses and complaints, Rule 5(b)(3) does not require service by summons and complaint; rather, it requires service in the same manner or method as a summons and complaint. Dickson v. Fletcher, 361 Ark. 244, 206 S.W.3d 229 (2005).
For the purposes of our discussion, we will assume, as Kenneth does, that this was a case in which the trial court had continuing jurisdiction. Therefore, the question before us is whether he accomplished service on Catherine as required by Rule 5. We do not believe that he did.
Service on a party by mail under Rule 5(b)(3) must comport with Ark. R. Civ. P. 4(d)(8)(A) (2005), which permits service by any form of mail, addressed to the person to be served, with a return-receipt requested and delivery restricted to the addressee or his agent. However, the record before us does not indicate that Kenneth mailed his motion to Catherine using restricted delivery, and, during oral argument, his counsel could not direct us to any evidence of such. Compliance with the service requirements of the Rules of Civil Procedure must be exact. Wilburn v. Keenan Cos., 298 Ark. 461, 768 S.W.2d 531 (1989). If service by mail under Rule 4 is required to be made by restricted delivery, the failure to do so renders service invalid. See Wilburn, supra\ see also CMS Jonesboro Rehab., Inc. v. Lamb, 306 Ark. 216, 812 S.W.2d 472 (1991) (holding that, even though restricted-delivery box was not checked on the mail card, service was valid where the mail was delivered just as if the box had been checked). In the case at bar, the restricted-delivery box was not checked, and there is no proof of de facto restricted delivery. Therefore, Kenneth’s attempted service by mail did not comply with Rule 4(d) (8)(A), and, consequently, did not comply with Rule 5(b)(3). We therefore agree with the trial court that Kenneth did not properly serve Catherine by mail.
Kenneth maintains, however, that, under Ark. R. Civ. P. 5(b)(2), service was “presumptively complete upon mailing.” It is true that this language appears in Rule 5(b)(2). However, subsection (b)(2), which provides for service by regular mail, states that its provisions apply “except as provided in paragraph (3).” Thus, by its own terms, the presumption in Rule 5(b)(2) does not apply to the service requirements of Rule 5(b)(3).
We turn now to Kenneth’s contention that Catherine was served when Federal Express delivered the motion to a person named Juan. He again relies on language in Rule 5(b)(2) that service by a commercial delivery company is presumptively complete upon depositing the papers with the company. However, as we previously stated, that language does not apply when service is made pursuant to Rule 5(b)(3). Further, Kenneth’s service did not comply with Ark. R. Civ. P. 4(d)(8)(C), as mandated by Rule 5(b)(3). Rule 4(d)(8)(C) provides that a commercial delivery package must be delivered to the addressee or her authorized agent and that “the signature of the defendant or agent must be obtained.” We see no evidence in the record that Catherine signed for the package or that the person named Juan was Catherine’s authorized agent, and, during oral argument, Kenneth’s counsel could not direct us to any such evidence. We therefore agree with the trial court that Catherine was not served by commercial delivery.
Next, we address Kenneth’s argument that Catherine was personally served by a process server. His argument actually centers on his claim that Catherine refused service from the process server.
Kenneth acknowledges that, when the process server attempted to serve Catherine at home and at work, he was unable to deliver the documents because Catherine was not present at the times of attempted delivery. This distinguishes the present case from Riggin v. Dierdorff, 302 Ark. 517, 790 S.W.2d 897 (1990), where, according to the supreme court, the defendant in fact refused to accept service, and Valley v. Bogard, 342 Ark. 336, 28 S.W.3d 269 (2000), where the process server saw the defendant through a window, made eye contact with him, announced that he had papers for him, and saw the defendant fall to his knees and crawl to the back of the house. Moreover, in both of those cases, following the refusal of service, the process server left the suit papers behind on the defendant’s property. Here, the process server left only his business card.
Kenneth also claims that appellee’s failure to make an appointment with the process server following the server’s phone call constitutes a refusal of service. We first observe that Kenneth cites no authority for his claim that a refusal to make an appointment to meet someone claiming to be a process server constitutes a refusal of service. In any event, we are hesitant to hold that a refusal has occurred where the process server has never personally encountered the defendant, other than by telephone, or left any documents for her. Under the particular circumstances of this case, we cannot say that the trial court erred in determining that Catherine did not refuse personal service.
Finally, Kenneth contends that Catherine had actual notice of his filing the motion, as evidenced by her attorney’s appearances contesting jurisdiction. We believe that the supreme court, by incorporating the service requirements of Rule 4 into Rule 5(b)(3), intended to adopt the spirit of Rule 4, in which actual knowledge does not validate defective service of process. See Carruth v. Design Interiors, 324 Ark. 373, 921 S.W.2d 944 (1996). We therefore conclude that, just as actual notice does not satisfy due process under Rule 4, it does not satisfy due process under Rule 5(b)(3).
For the foregoing reasons, we affirm the trial court’s dismissal of Kenneth’s motion due to improper service. Our holding makes it unnecessary to reach Catherine’s argument that Kenneth was required to file a separate breach-of-contract action and serve it by means of a summons and complaint.
Affirmed.
Pittman, C.J., and Robbins, J., agree.
This rale governs service inside the state; however, Rule 4(e), which authorizes service outside the state, provides for service by mail as set forth in subsection (d)(8).
Even though this reasoning was not used by the trial court, we may affirm the trial court if it is correct for any reason. Fritzinger v. Beene, 80 Ark. App. 416, 97 S.W.3d 440 (2003).
We observe that the 1999 amendment to Rule 5, which added subsection (b)(3), apparently superseded the holding in Office of Child Support Enforcement v. Ragland, 330 Ark. 280, 954 S.W.2d 218 (1997), that a service of post-judgment motion is presumptively complete upon mailing. See Finney v. Cook, 351 Ark. 367, 94 S.W.3d 333 (2002); Ark. R. Civ. P. 5 Reporter’s Notes, 1999 Amendment (2005). | [
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Andree Layton Roaf, Judge.
On January 2, 2001, appellant Eddie Bray sustained a compensable back injury for which he had surgery in May 2001. This claim has been the subject of a previous hearing in April 2002, when appellees International Wire Group (IWG) and General Accident of America (GAA) denied the claim after allowing Bray only one visit to the company doctor. The injury was found to be compensable, and IWG and GAA were directed by the administrative law judge (ALJ) in a June 2002 opinion to pay medical expenses and temporary total disability (TTD) benefits for two different time periods ending on February 7, 2002. Sometime later in 2002, IWG and GAA stopped paying medical benefits associated with Bray’s visits to his regular physician, Dr. Toni Middleton, this time on the basis that Dr. Middleton was not an authorized treating physician. Bray challenged the appellees on the refusal to pay further benefits; discovery was conducted during 2003; and a hearing was ultimately held before the ALJ on June 18, 2004. The ALJ found that Dr. Middleton was not an authorized physician, that Bray was not entitled to additional temporary total disability benefits, and that Bray was not entitled to attorney’s fees. The Commission affirmed and adopted the decision of the ALJ. On appeal, Bray asserts that the Commission’s decision is not supported by substantial evidence. We reverse in part and affirm in part.
During the course of litigating his original claim, Bray received treatment from his general practitioner, Dr. Middleton. Dr. Middleton treated him for his back problems and referred him to Dr. P.B. Simpson, a specialist. Dr. Simpson performed surgery on Bray in May 2001 and eventually assigned him a fifteen-percent anatomical impairment rating. Dr. Simpson initially released Bray to be seen on an as-needed basis as of February 6, 2002. Dr. Simpson also saw Bray on January 31, 2003, and again instructed Bray to return to him on an “as-needed basis.” Dr. Simpson noted in his 2003 report that Bray wanted pain medication, but Dr. Simpson stated that he would “let his regular physician take care of that.”
After he was awarded benefits on his original claim in 2002, according to Bray, he contacted the insurance carrier about seeing Dr. Middleton and getting prescriptions. Fie testified that he was directed to Donna “Tuttie” Criswell, a new adjuster handling his file. He stated that he spoke with “Tuttie” on three or four occasions in an attempt to get his prescriptions filled and to see Dr. Middleton. According to Bray, in his first conversation with her, Criswell gave him a number to take to the pharmacy to get his medication. Bray informed Criswell that Dr. Simpson had released him with instructions to follow up with pain management with his regular physician. Bray testified that Criswell told him to see his regular physician as Dr. Simpson had recommended. Criswell testified that she only had Bray’s file for about a month, that she did not remember ever having a conversation with Bray, and further stated that she never told him to see his regular physician. Criswell acknowledged, however, that she did go by the nickname “Tut-tie.”
Bray requested a hearing to determine his entitlement to payment of medical expenses related to his visits to Dr. Middleton, temporary total disability benefits, and attorney’s fees. The ALJ found in an opinion filed September 16, 2004, that Dr. Middleton was unauthorized and that Bray’s healing period had ended when Dr. Simpson initially released him in 2002. Thus, the ALJ ruled that Bray was not entitled to additional medical expenses or to additional temporary disability benefits and that he was not entitled to attorney’s fees. The Commission adopted the decision of the ALJ.
The well-settled standard of review for workers’ compensation cases is as follows: Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 133-34, 84 S.W.3d 878, 881 (2002).
This court reviews decisions of the Workers’ Compensation Commission to see if they are supported by substantial evidence. Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992). In determining the sufficiency of the evidence to support the findings of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Commission’s findings, and we will affirm if those findings are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The determination of the credibility and weight to be given a witness’s testimony is within the sole province of the Commission. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Farmers Coop, v. Biles, 77 Ark. App. 1, 4-5, 69 S.W.3d 899, 902 (2002). Further, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Estridge v. Waste Mgmt., 343 Ark. 276, 33 S.W.3d 167 (2000).
For his first point on appeal, Bray argues that the Commission’s decision that he is not entitled to additional medical expenses and additional temporary disability benefits because Dr. Middleton was not an authorized treating physician is not supported by substantial evidence. Bray specifically asserts that Dr. Middleton was authorized to treat him because Dr. Simpson referred him back to Dr. Middleton and because Dr. Middleton was his initial treating physician. IWG and GAA do not contest the reasonableness or necessity of Dr. Middleton’s treatment. Arkansas Code Annotated section 9-ll-514(b) (Repl. 2002) states that treatment by a physician other than the claimant’s authorized physician shall be at the claimant’s expense. This section, however, is inapplicable if the authorized treating physician refers the claimant to another doctor for examination or treatment. Am. Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998). Whether treatment is a result of a “referral” rather than a “change of physician” is a factual determination for the Commission. Dep’t of Parks & Tourism v. Helms, 60 Ark. App. 110, 959 S.W.2d 749 (1998); Patrick v. Ark. Oak Flooring Co., 39 Ark. App. 34, 833 S.W.2d 790 (1992). When that determination is challenged on appeal, this court will affirm if it is supported by substantial evidence. Helms, supra.
The Commission’s opinion focuses on its finding that there is no evidence that Bray received permission from the insurance carrier to change physicians. Bray, however, clearly asserts that he did not attempt to exercise his right to a one-time change of physician under Ark. Code Ann. § 11-9-514. Instead, Bray argues that Dr. Simpson referred him to Dr. Middleton, or in the alternative, that Dr. Middleton remained authorized as his initial treating family physician.
Bray first saw Dr. Middleton, a general practitioner, after his initial injury. Dr. Middleton was the physician who originally ordered diagnostic testing and then referred Bray to Dr. Simpson, the specialist who performed surgery on Bray’s back. The ALJ recognized Dr. Middleton as a treating physician in the 2002 opinion regarding the original award; this decision was issued in June 2002, after Dr. Simpson’s first release letter was issued in February 2002. On January 31, 2003, Dr. Simpson again recorded in his notes that he was discharging Bray from his care and would see him back on an as-needed basis. Dr. Simpson also noted that Bray wanted pain medication but that he would “let [Bray’s] regular physician take care of that.” The situation presently before this court is a treating specialist releasing his patient and referring him back to his original treating physician, who was authorized to treat him.
Dr. Middleton was Bray’s original treating physician, and there is nothing in the record or the various decisions of the ALJ and Commission that states or even suggests that he did not remain an authorized physician throughout this case. Bray saw Dr. Middleton after IWG and GAA controverted his original claim. In the first decision of this case, the ALJ found the claim to be compensable and ordered IWG and GAA to pay Bray’s medical bills, including bills from Dr. Middleton. Dr. Middleton was and remains an authorized treating physician in this case.
For his second point on appeal, Bray argues that the Commission erred when it found that he was not entitled to additional total temporary disability benefits because the decision is not supported by substantial evidence. He asserts that he was entitled to additional TTD benefits pursuant to Dr. Middleton’s findings. Bray presented off-work slips by Dr. Middleton indicating that he should remain off work for a certain time. In the original opinion, the ALJ decided that TTD benefits should be paid through February 7, 2002. Bray was also given a fifteen-percent anatomical impairment rating. Bray did not appeal this decision. Bray now asserts that he has entered a new healing period based on the off-work slips from Dr. Middleton and a report dated June 15, 2004. There is no indication, however, that Bray’s condition has materially changed in any way or that he has entered into a new healing period. When the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve that condition, the healing period for which the claimant is entitled to TTD benefits has ended. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). Dr. Middleton’s report does not suggest any further treatment that might improve Bray’s condition. Dr. Simpson, noting in his report that he could not find anything significantly wrong with him, released Bray from his care and referred him to his regular physician for pain management. The persistence of pain is not sufficient in itself to extend the healing period. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). Thus, the Commission’s decision that Bray is not entitled to additional TTD benefits is supported by substantial evidence.
Finally, Bray argues that the Commission’s decision that he is not entitled to attorney’s fees and costs related to his motion to compel is not supported by substantial evidence. At a deposition on January 15, 2003, Bray’s counsel hand-delivered discovery to IWG and GAA’s counsel, asking for telephone logs to confirm Bray’s assertion that he contacted the adjuster about seeing Dr. Middleton. IWG and GAA did not turn over the logs but answered that there were no such conversations noted in the telephone logs. Bray filed a motion to compel. A hearing was held on this matter, and IWG and GAA were ordered to provide those logs to the Bray with certain restrictions. The logs did not confirm Bray’s assertions. Bray asserts that he is entitled to attorney’s fees and costs related to his motion to compel because IWG and GAA were wrongfully withholding relevant information. There was no evidence in the record regarding the costs incurred by Bray concerning the hearing on the motion to compel. We do not decide whether the ALJ lacked the authority to award attorney’s fees and costs as the Commission’s opinion notes, but we do hold that, in this case, substantial evidence supports the Commission’s decision not to award attorney’s fees and costs relating to the motion to compel.
Reversed in part; affirmed in part.
Hart and Vaught, JJ., agree. | [
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Olly Neal, Judge.
On February 14, 2005, appellant Bradley Wilson entered a conditional plea of guilty admitting guilt to two counts of residential burglary, one count of theft of property valued in excess of $2500, and one count of theft of property valued in excess of $500. Appellant also admitted that he was a habitual offender with two or more felonies. He was sentenced to serve fifty years in the Arkansas Department of Correction. Pursuant to Rule 24.3 of the Arkansas Rules of Criminal Procedure, appellant preserved his right to appeal the trial court’s denial of his motions to suppress the evidence against him. On appeal, appellant argues that the trial court erred in denying his motion to suppress evidence obtained as a result of involuntary statements made by appellant after he was informed that he was not entitled to an attorney. He also argues that the trial court erred in denying his motion to suppress evidence obtained as a product of involuntary statements made by appellant based upon false promises of leniency by law enforcement personnel. We affirm.
The facts of this case are as follows. On August 17, 2004, the Saline County Sheriffs Department took appellant into custody for a parole violation. While in custody, appellant was advised of his Miranda rights and he signed a consent form. A detective attempted to interview appellant; however, appellant refused to speak to the detective until after the tape in the detective’s recorder ran out. Appellant then indicated that he had knowledge concerning several burglaries that had occurred in Grant, Pulaski, and Saline Counties. Appellant indicated that he would cooperate in exchange for a deal.
The detective arranged a meeting for the following day with John McQuary, who was Saline County chief deputy prosecutor at the time. Appellant’s mother, Shirley Beard, and two detectives were also present at the meeting. During the meeting, McQuary informed appellant that he would not make any deals or promises but that he would take into consideration any help appellant could provide in recovering the stolen property. McQuary also indicated that he would inform the Grant and Pulaski County prosecuting attorneys that appellant was cooperating. When McQuary refused to put an agreement in writing, Ms. Beard inquired about obtaining an attorney for appellant. In response to Ms. Beard’s inquiry, McQuary allegedly replied that appellant had yet to be charged with anything and that appellant could not be appointed an attorney until after he was charged. Thereafter, appellant assisted all three counties with their resulting burglary investigations.
Appellant pleaded guilty to burglary charges in both Pulaski and Saline counties. On September 27, 2004, appellant was charged, in Grant County, with two counts of residential burglary, theft of property with a value in excess of $2500, theft of property with a value in excess of $500, and being a habitual offender with two or more felonies. Appellant moved to suppress the evidence against him. He argued that the trial court should suppress any evidence that was obtained as a result of involuntary statements made after promises of leniency. Appellant also argued that the trial court should suppress any evidence that was obtained as a result of involuntary statements made after he was informed that he was not entitled to an attorney. The trial court denied appellant’s motion, finding that appellant never invoked his right to counsel and that appellant was in no way coerced by promises of leniency. From that decision, appellant now brings this appeal.
In reviewing a trial court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Swan v. State, 94 Ark. App. 115, 226 S.W.3d 6 (2006). The credibility of witnesses who testify at a suppression hearing about the circumstances surrounding the appellant’s custodial statement is for the trial judge to determine, and we defer to the superior position of the trial judge in matters of credibility. See Otis v. State, 364 Ark. 151, 217 S.W.3d 839 (2005).
In his first argument on appeal, appellant asserts that the trial court erred when it failed to suppress evidence obtained as a result of involuntary statements made by appellant after being informed that he was not entitled to an attorney. A custodial statement is presumptively involuntary; it is the State’s burden to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. Knight v. State, 62 Ark. App. 230, 971 S.W.2d 272 (1998). In determining whether a statement is voluntary, the reviewing court makes an independent review of the totality of the circumstances and will not reverse unless the trial court’s findings are clearly against the preponderance of the evidence. Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997). There are two components to the totality of the circumstances test for determining the voluntariness of a custodial statement. Id. First, the statements of the interrogating officers are examined. Id. Second, the vulnerability of the defendant is considered, weighing such factors as age, education, intelligence, repeated or prolonged nature of questioning, delay between receiving Miranda warnings and giving a confession, length of detention, use of physical punishment, and the defendant’s physical and emotional condition. Id.
In the case at bar, the testimony at the suppression hearing established the following. Detective Randy Gibbons of the Saline County Sheriff s Department testified that appellant was taken into custody on August 17, 2004. He said that appellant was informed of his Miranda rights and that appellant signed a consent form. While attempting to interview appellant, Detective Gibbons learned that appellant was a suspect in several burglaries. When appellant indicated that he wanted a deal in exchange for his cooperation, Detective Gibbons arranged for appellant to meet with McQuary. Detective Gibbon testified that, during his interview with appellant, appellant never asked for an attorney. He recalled that, during the meeting with McQuary, appellant’s mother requested an attorney on his behalf and that McQuary informed them that “when he was charged with anything he would go to court and he could be appointed an attorney or she could get him an attorney if he wanted an attorney.”
Shirley Beard, appellant’s mother, testified that, during the meeting with McQuary, she requested an attorney for her son. She said that McQuary informed her that appellant had not been charged with anything and that he could not get an attorney appointed until after he was charged.
Appellant testified that, during his lifetime, he had been interviewed by the police approximately four to six times and that, as a result, he had signed Miranda warnings four to six times. He stated that he basically understood his Miranda rights. Appellant also testified that he had been to prison three times. Appellant said that he asked Detective Gibbons for an attorney during the first three days of his being taken into custody. He said that, during the meeting with McQuary, his mother requested an attorney for him. He said that they were told he could not have an attorney because he had yet to be charged with anything.
John McQuary testified that, in August 2004, he was the Chief Deputy Prosecuting Attorney for Saline County. He recalled meeting with appellant and Ms. Beard on August 18. He said that, at the time, appellant was being held on a parole hold and that appellant had not been arrested on any breaking or entering charges. During his testimony, McQuary stated:
I do not remember his mother requesting an attorney at all. I remember speaking to his mother after we had spoken with [appellant]. This was outside. And I don’t remember the full conversation at all on it. But I do know I do not remember her requesting an attorney for her son at all. Number one, it would have caused me enough hesitancy that I think that I would have remembered that even though she’s not the one that would need to request an attorney in that situation.
He stated that, during the meeting, appellant did not appear to have any mental infirmities that would keep him from making decisions regarding his own welfare.
We conclude that, although appellant testified that he first requested an attorney during the first couple of days of his being taken into custody, the trial court was not required to believe appellant’s testimony. It has been said on numerous occasions that the trial judge is not required to believe the testimony of any witness, particularly that of the accused since he or she is the person most interested in the outcome of the proceedings. Bunch v. State, 346 Ark. 33, 57 S.W.3d 124 (2001).
As to what occurred during the meeting with McQuary, Ms. Beard and McQuary gave conflicting testimony regarding whether or not Ms. Beard asked for an attorney on her son’s behalf. The trial court found that appellant never personally invoked his right to counsel. It is well settled that we defer to the credibility determinations made by the trial judge. See Swan v. State, supra. Furthermore, the right to an attorney is a personal right. Scott v. State, 298 Ark. 214, 766 S.W.2d 428 (1989); Suite v. State, 18 Ark. App. 166, 712 S.W.2d 317 (1986). A third party may not invoke a defendant’s personal right to an attorney. See U.S. v. Scarpa, 897 F.2d 63 (2d Cir. 1990) (holding that once a defendant waived his constitutional rights, those rights could not be invoked by a third party).
Appellant also argues that the trial court erred when it failed to suppress evidence obtained that was the result of involuntary statements made by appellant following false promises of leniency. A statement induced by a false promise of reward or leniency is not a voluntary statement. Pilcher v. State, 355 Ark. 369, 136 S.W.3d 766 (2003). When a police officer makes a false promise that misleads a prisoner, and the prisoner gives a confession because of that false promise, then the confession has not been made voluntarily, knowingly, and intelligently. Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003). In deciding whether there has been a misleading promise of reward or leniency, we view the totality of the circumstances and examine, first, the officer’s statement and, second, the vulnerability of the defendant. Id.
If, during the first step, we decide that the officer’s statements are unambiguous false promises of leniency, there is no need to proceed to the second step because the defendant’s statement is clearly not voluntary. Winston v. State, 355 Ark. 11, 131 S.W.3d 333 (2003). If, however, the officer’s statement is ambiguous, making it difficult for us to determine if it was truly a false promise of leniency, we must proceed to the second step of examining the vulnerability of the defendant. Id. Factors to be considered in determining vulnerability include: 1) the age, education, and intelligence of the accused; 2) how long it took to obtain the statement; 3) the defendant’s experience, if any, with the criminal-justice system; and 4) the delay between Miranda warnings and the confession. Id.
Detective Gibbons testified that each time appellant was interviewed he was reminded of his Miranda rights. He said that, when appellant indicated he wanted a deal, he told appellant he would “help him as much as I can.” He said that, when he informed McQuary that appellant wanted a deal, McQuary in formed appellant that he would not make any deals or promises and that he would only take into consideration any help appellant could provide in recovering the stolen property. Detective Gibbons recalled McQuary telling appellant that he would let the prosecutors in the other counties know that appellant was cooperating and that he would talk to the other prosecutors to “see if they could lump them all together.” He said that McQuary was not specific in what he would do in exchange for appellant’s cooperation. He stated that McQuary did lay out what appellant could be tried for and his possible sentence if found guilty.
Detective Robert Byrd of the Grant County Sheriffs Department testified that he came in contact with appellant on August 18 at the Saline County Criminal Investigation Division. He said that, prior to talking to appellant, he confirmed that appellant had been advised of his Miranda rights. He said that, during his talk with appellant, he informed appellant that he was a suspect in several burglaries in Grant County. He said that appellant indicated that he had knowledge about the burglaries but did not admit that he had any involvement in the burglaries. Detective Byrd testified that he did not employ threats or coercion to get appellant to talk. He said that he talked with appellant again on August 20. He said that, prior to having appellant identify the homes he had burglarized, he confirmed that appellant had been made aware of his Miranda rights. Detective Byrd denied making any promises of leniency in exchange for appellant’s cooperation. He also denied employing any threats.
Ms. Beard testified that appellant was thirty years old, able to read and write, and able to make his own decisions. She recalled asking what would occur if appellant cooperated and that one of the detectives replied that appellant would get a better deal. She said that she asked McQuary to put something down on paper but that he refused and said that appellant would spend less time incarcerated.
Appellant testified that he understood that he did not have to talk to the police officers. He said that, during his meeting with McQuary, McQuary informed him how much time he could receive and said that, if appellant cooperated, he would receive less time. He also said that McQuary informed him that, if he cooperated with the surrounding counties, he could serve his time concurrently. Appellant testified that McQuary refused to put anything in writing, but he believed that they reached an agreement where, in exchange for appellant’s cooperation, McQuary would see that appellant served one sentence and that McQuary would talk to the prosecuting attorneys in Grant and Pulaski counties. He believed that an agreement between him and Saline County would also bind Grant County. Appellant did not remember Detective Byrd making any promises of leniency.
During his testimony, John McQuary stated the following:
I think he was well aware of which avenues are available to defendants. Otherwise, he wouldn’t have known to say, hey, I want a prosecutor down here, you know, right now because only defendants that have been through that before know that it’s the prosecutor is [sic] the only one that can, you know, lay it on the line and it’s held to. So yeah, I mean, [appellant] had spent most of his time in prison or I think he also had some juvenile as well. So he knows the judicial system and knows law enforcement.
McQuary further testified that, when he was notified that appellant wanted a deal, he informed the officers that “I don’t make any kind of deals whatsoever on the front end.” He said that he never indicated to appellant that he had the authority to bind any other district. He testified that he told appellant the following:
I told him... that I knew Eddy Easley and I also knew Larryjegley, and that if, in fact, he assisted all different [sic] law enforcement agencies that I would contact both Eddy Easley, Larryjegley, and, at the time I was still working down in Saline [C]ounty, and that we would see if we could not wrap everything up for him before he went down to the pen so that once he went to the pen, because I told him, I said, you know you’re going to the pen. And I said the best that we can do is try to wrap everything up in all three counties so that when you do go down there it’s all behind you. Once you finish up you’re done, you’re out. But I couldn’t make him any promises as to whether that would occur or not.
McQuary testified that he, in fact, contacted the prosecuting attorneys for Pulaski and Grant Counties.
Here, the statements made to appellant were rather ambiguous; therefore, we must consider whether appellant was particularly vulnerable. Appellant was thirty years old and had been in and out of the criminal-justice system for several years. Plus, each time appellant was questioned, he was reminded of his Miranda rights. Furthermore, it appears that appellant’s sole pur pose in requesting McQuary’s presence was so that he could cut a deal with the State. Under the totality of the circumstances, we cannot say that false promises of leniency were made to appellant. Accordingly, the trial court did not err when it denied his motion to suppress his statements made to law enforcement officers.
Affirmed.
Pittman, C.J., and Gladwin, Robbins, Baker, JJ., agree.
Griffen, J., dissents. | [
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Melvin Mayfield, Judge.
Rose Developments appeals from the order of the circuit court which permanently enjoined the drawing on, or honor of, a letter of credit, pursuant to Ark. Code Ann. § 4-5-114(2)(b) (Repl. 1991), on the finding that appellant had committed fraud.
On December 6,1988, appellee Pearson contracted with the appellant Rose to provide material and labor in connection with the construction of building “K” in a condominium project known as Solomons Landing Project. The amount of the contract was $458,200.00. In lieu of a performance bond, Pearson delivered an irrevocable letter of credit in the amount of $25,000.00 to secure its performance under the contract. The letter of credit authorized Rose to draw up to $25,000.00 available by “your drafts at sight” accompanied by an authorized statement that Pearson (d/b/a Homes, Inc.) had failed to perform its obligations as required under the terms and conditions of its construction contract and the original of the letter of credit. Under the terms of the letter of credit, drafts had to be drawn and negotiated no later than July 15, 1989. Subsequently, buildings “E” and “L” were made addendum to the original contract. The only change was an increase in the price.
On July 5, 1989, S. Brooks Grady, Sr., Vice-President of Rose, stated in a letter to First National Bank (Bank) that “Homes, Inc. has been working on our job at Solomons Landing in Maryland since November 1988. We have been very satisfied with their work, and they are presently working on our third building.” On July 15, 1989, the letter of credit was extended until January 12, 1990, for the purpose of working on buildings “E” and “L”.
On December 4, 1989, the Bank was notified that Homes, Inc., had failed to perform its obligations as required under the terms and conditions of its construction contract and immediate payment of $25,000.00 was requested under the letter of credit.
On December 12, 1989, Pearson filed a petition for a temporary restraining order against Rose and the Bank alleging among other things that the draft was fraudulently presented upon misrepresentations by Rose, and alternatively that “Ark. Code Ann. Section 4-5-114 specifically grants the Court authority to enjoin the honor of a draft or demand based on ‘fraud, forgery, or other defect not apparent on the face of the documents.’ ”
On December 13, 1989, the court granted the petition. Subsequently, the Bank filed an answer admitting its obligation to honor the draft drawn against the letter of credit unless enjoined by the court and tendered a cashier’s check for $25,000.00 to the clerk of the court for safekeeping until further orders.
After a hearing, held May 31, 1990, the trial court found Rose had committed fraud which should prevent it from drawing on the letter of credit and permanently enjoined the Bank from honoring the draft and Rose from drawing on the letter of credit.
A letter of credit is a three-party arrangement involving two contracts and the letter of credit: 1) the underlying contract between the customer and the beneficiary, m this case between Pearson and Rose; 2) the reimbursement agreement between the issuer and the customer, in this case between First National Bank and Pearson; and 3) the letter of credit between the issuer and the beneficiary, in this case between First National Bank and Rose. The significant part of this arrangement is the “independence principle” which states that the bank’s obligation to the beneficiary is independent of the beneficiary’s performance on the underlying contract. 2 J. White & R. Summers, Uniform Commercial Code § 19-2 (3d ed. 1988). “Put another way, the issuer must pay on a proper demand from the beneficiary even though the beneficiary may have breached the underlying contract with the customer.” Id. at 8. “It is not a contract of guarantee. . . even though the letter fulfills the function of a guarantee.” Id. at 9.
The letter of credit involved in this case is a standby letter of credit which has been characterized as a “back-up” against customer default on obligations of all kinds. Id. § 19-1, at 4. Such letters function somewhat like guarantees because it is the customer’s default on the underlying obligation that prompts the beneficiary’s draw on the letter. Id. at 4. The risk to the issuer is somewhat greater than in a commercial letter of credit in that the commercial letter gives the issuer security in goods whereas the standby letter gives no ready security, and the banker behaves as a surety. Id. at 6. The standby letter of credit is somewhat akin to a performance bond in that:
In place of a performance bond from a true surety, builder (customer) gets his bank (issuer) to write owner (beneficiary) a standby letter of credit. In this letter, issuer engages to pay beneficiary-owner against presentment of two documents: 1) a written demand (typically a sight draft) which calls for payment of the letter’s stipulated amount, plus 2) a written statement certifying that customer-builder has failed to perform the agreed construction work.
Id. at 4. One difference between the standby letter of credit and the surety contract is that the standby credit beneficiary has different expectations.
In the surety contract situation, there is no duty to indemnify the beneficiary until the beneficiary establishes the fact of the obligor’s nonperformance. The beneficiary may have to establish that fact in litigation. During the litigation, the surety holds the money and the beneficiary bears most of the cost of delay in performance.
In the standby credit case, however, the beneficiary avoids that litigation burden and receives his money promptly upon presentation of the required documents. It may be that the account party has in fact performed and that the beneficiary’s presentation of those documents is not rightful. In that case, the account party may sue the beneficiary in tort, in contract, or in breach of warranty; but during the litigation to determine whether the account party has in fact breached his obligation to perform, the beneficiary, not the account party, holds the money.
J. Dolan, The Law of Letters of Credit, at 1-18, 1-19 (2d ed. 1991).
Letters of credit are governed by the “Uniform Commercial Code-Letters of Credit,” Ark. Code Ann. § 4-5-101 through 117 (Repl. 1991). Section 4-5-114(1) provides that an issuer must honor a draft which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract between the customer and the beneficiary. However, the issuer does not have an absolute duty to honor a draft authorized by the letter of credit. An exception is provided by § 4-5-114(2) which provides that an issuer need not honor the draft if “a required document does not in fact conform to the warranties made on negotiation or transfer of a document of title (§ 4-8-306) or of a certificated security (§ 4-8-306) or is forged or fraudulent or there is fraud in the transaction.” Section 4-5-114(2)(b) provides that in all other cases as against its customer an issuer may honor the draft despite notification from the customer of fraud, forgery, or other defect not apparent on the face of the documents but a court of appropriate jurisdiction may enjoin such honor.
On appeal, it is argued that the trial court erred in finding the appellant committed fraud which would prevent it from drawing on the letter of credit. Appellant admits that courts have allowed injunctions for “fraud in the transaction” but argues an injunc tion is proper only if there is no bona fide claim to payment, and the wrongdoing of the beneficiary has so vitiated the entire transaction that the legitimate purposes of the independence principle would no longer be served. See Intraworld Industries, Inc. v. Girard Trust Bank, 336 A.2d 316 (Pa. 1975); Sztejn v. Henry Schroder Banking Corp., 31 N.Y.S.2d 631 (1941). Appellant contends that Pearson has established only that there may be a dispute as to some of the “back charges”. (Back charges have to do with material and labor that needs or needed to be performed, that Pearson was supposed to be responsible for, but appellant had to take over.)
Appellees agree the only issue on appeal is whether appellant committed fraud which would justify the issuance of the injunction and argue the injunction was proper. Appellee Pearson contends that in December 1989 or January 1990 it received a number of back charges dating as far back as December 1988; that it had never previously received these charges; that appellant, while in possession of documents it claimed were back charges, wrote a letter to obtain an extension of the letter of credit stating it was “very satisfied with the work of Homes, Inc.”; and that appellant knowingly misrepresented the facts in order to obtain an extension of the letter of credit.
In support of its argument, appellee Pearson cites W.O.A. Inc. v. City National Bank of Fort Smith, Ark., 640 F. Supp. 1157 (W.D. Ark. 1986), and Shaffer v. Brooklyn Park Garden Apartments, 250 N.W.2d 172 (Minn. 1977). Those cases, however, involved false certification accompanying drafts for payment and have no application here. In City National Bank the appellant intentionally misrepresented the state of affairs when, though it had been paid, it presented drafts for payment under a letter of credit. That case relied on Roman Ceramics Corp. v. Peoples National Bank, 714 F.2d 1207 (3d Cir. 1983), which held that a beneficiary who tenders a draft knowing that its certification of nonpayment by the buyers is false, is guilty of fraud in the transaction. Similarly, Shaffer involved a situation where letters of credit guaranteed payment of certain promissory notes. The issuer received documents which appeared to comply with the presentation requirements under the letters of credit; however, the certifications which stated the customers had defaulted on their loans were false.
In the instant case, the certification stated that “Homes, Inc., has failed to perform its obligations as required under the terms and conditions of their construction contract.” At trial, Robert Pearson III, Vice-President of Homes, Inc., testified they did not allege that there were forgeries “or anything like that” involved in the demand for payment on the letter of credit. Pearson admitted the letter of credit was to protect appellant in the event Pearson did not pay for labor, materials and other supplies that might be incorporated into the structure; that there were outstanding materialmen’s and laborers’ liens against the project; and that some of those liens were for materials, labor, and supplies that were the responsibility of Pearson. Pearson testified his allegation of fraud was based on the contention that he had been billed for work outside his contract and that Rose had called upon the letter of credit based upon certain back charges. Pearson said the majority of the back charges were unacceptable, but acknowledged that 10% of the charges were legitimate.
Appellee Bank admits this case does not involve forgery or “other defect not apparent on the face of the documents”. John Thornton, Executive Vice-President of the Bank, testified he would not have extended the original letter of credit without Rose’s statement that the jobs were being done in a satisfactory manner. Appellee Bank argues that none of the back charges, that predated the extension of the letter of credit, were mentioned in appellant’s letter which induced the Bank to extend the letter of credit. And the Bank contends that Rose’s fraud can be categorized as both egregious and intentional and that the injunction was a proper statutory remedy.
The narrow question to be decided by this court is whether the evidence will support, a finding that there was “fraud in the transaction.” Our research has revealed no Arkansas cases containing a definition of “fraud in the transaction” as used in the section of the Uniform Commercial Code that is involved in this case. Some courts have held that fraud in the transaction must be of such an egregious nature as to vitiate the entire underlying transaction so that the legitimate purposes of the independence of the bank’s obligation would no longer be served. See Roman Ceramics Corp. v. Peoples National Bank, 517 F. Supp. 526 (M.D. Pa. 1981), aff'd, 714 F.2d 1207 (3d Cir. 1983); Intraworld, supra; Sztejn, supra. Other cases and writers have suggested intentional fraud should be sufficient to obtain injunc-tive relief in letter of credit cases. See NMC Enterprises, Inc. v. Columbia Broadcasting System, Inc., 14 U.C.C. Rep. Serv. 1427 (N.Y. Sup. Ct. 1974); 6 W. Hawkland, Uniform Commercial Code Series, § 5-114:09 (1984); Edward L. Symons, Jr., Letters of Credit: Fraud, Good Faith and the Basis for Injunctive Relief, 54 Tul. L. Rev. 338 (1980). Professor Symons concludes “a proper definition of fraud will necessarily encompass and be limited by the requirement of scienter: that there be an affirmative, knowing misrepresentation of fact or that the beneficiary state a fact not having any idea about its truth or falsity, and in reckless disregard of the truth.” Symons, supra at 379. It has also been suggested that the lesson to be learned from this section of the Uniform Commercial Code (Ark. Code Ann. § 5-4-114(2) (Repl. 1990), is that a court should seldom enjoin payment under a letter of credit on the theory that there is fraud in the documents or fraud in the underlying transaction. See 2 J. White & R. Summers, Uniform Commercial Code § 19-7 (Supp. 1991).
From our consideration of the law and the evidence in this case, we think the trial court erred in enjoining payment under the letter of credit. In the first place, we do not believe appellant’s general statement “we have been very satisfied with their work” is sufficient for a finding of fraud. At the time this statement was made, appellant had extended Pearson’s contract for building “K” to include buildings “E” and “L”, and it seems obvious that appellant’s statement was truthful or appellant would not have extended the contract. Also, the testimony shows that the total amount of the contract for building “K” was $458,200.00 and that the back charges which pre-date the statement complained of totalled only approximately $1,944.81. We do not believe the existence of back charges in that small amount supports a finding that appellant committed fraud when it said “we have been very satisfied with their work.”
As to the argument that appellant’s fraud consisted of billing for work that was outside its contract and other disputed back charges, Robert Pearson III testified his allegation of fraud was that the letter of credit was being called upon because appellant said that based upon “these back charges” they were still owed money, but Pearson testified that as far as “these back charges” are concerned “the majority of them are unacceptable.” Pearson testified appellant was claiming a total of $50,000.00 to $60,000.00 in back charges on a project which totaled over $1.2 million. This is simply a contract dispute relating to back charges which may have to be resolved in litigation. However, as explained in Dolan, supra, in the standby letter of credit case “the beneficiary avoids that litigation burden and receives his money promptly” and during the litigation “the beneficiary, not the account party, holds the money.”
When we apply the law to the evidence in this case, we think it was clearly erroneous to find that appellant committed fraud that should prevent it from drawing on the letter of credit; therefore, it was error to grant permanent injunctive relief to appellee Pearson and prevent the Bank from honoring the draft drawn on the letter of credit.
Reversed and remanded for any necessary proceedings consistent with this opinion.
Cracraft, C.J., and Danielson, J., dissent. | [
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John E. Jennings, Judge.
Mary Jernigan was charged on January 5,1988, with battery in the first degree. The information was later amended to charge battery in the first degree by means of a deadly weapon. On January 10, 1989, the jury found Jernigan guilty of battery in the second degree and the court sentenced her to ten years imprisonment with six years suspended. On May 16, 1990, in an opinion not designated for publication, this court reversed for reasons not pertinent here.
Jernigan was retried and on February 4, 1991, was again found guilty by a jury of battery in the second degree. This time the circuit court sentenced her to ten years imprisonment with seven years suspended. We find that the trial court erred in excluding certain proffered evidence and must again reverse and remand for new trial.
At trial, James Wright, an electrician from Arkoma, Oklahoma, testified that during 1988 he began having an extramarital affair with the defendant. He then moved into her home in Fort Smith. Wright testified that on August 22,1988, both he and Ms. Jernigan had been drinking beer. Wright testified that during an argument the defendant shot him five times with a pistol.
Wright had previously filed a civil complaint for damages against Jernigan, alleging that the shooting was accidental rather than intentional. In a hearing before the trial in the case at bar the circuit court ruled that the defendant could not use the prior civil complaint to impeach Wright. The court’s ruling was based on Razorback Cab of Fort Smith, Inc. v. Lingo, 304 Ark. 323, 802 S.W.2d 444 (1991). It is true that the supreme court reversed the trial judge’s ruling admitting a complaint into evidence in Lingo, stating, “Complaints, normally phrased in the most partisan language, are in no conceivable sense evidentiary. . . .While the cases bespeak no hard and fast rule, pleadings, and especially complaints, are generally treated as inadmissible.” 304 Ark. at 325, 802 S.W.2d at 445.
The distinction between that case and this one is that in Lingo the plaintiff himself sought to introduce his own complaint as substantive evidence. In the case at bar, the defendant sought to impeach the prosecuting witness with the latter’s complaint filed in a civil action. Under these circumstances the complaint qualifies as a prior inconsistent statement under Ark. R. Evid. 613. See McDaniel v. State, 291 Ark. 596, 726 S.W.2d 679 (1987). The defendant should have been permitted to pursue this line of inquiry.
Jernigan also argues that the sentence she received was “illegal”. An illegal sentence is one which is illegal on its face. Finn v. State, 36 Ark. App. 89, 819 S.W.2d 25 (1991). Battery in the second degree is a class D felony. Ark. Code Ann. § 5-13-202 (1987). The maximum punishment for a class D felony is six years. Ark. Code Ann. § 5-4-401(a)(5) (1987). However, Ark. Code Ann. § 16-90-121 (1987) provides:
Any person who is found guilty of or pleads guilty to a felony involving the use of a deadly weapon, whether or not an element of the crime, shall be sentenced to serve a minimum of ten (10) years in the state prison without parole but subject to reduction by meritorious good-time credit.
Appellant’s argument is based on a statement contained in Crespo v. State, 30 Ark. App. 12, 780 S.W.2d 592 (1989): “The application of § 16-90-121 does not impose an additional sentence, but merely precludes the possibility of Crespo being eligible for parole before serving ten years, subject to reduction for meritorious good-time.” That statement was true in Crespo because the defendant had been sentenced to twelve years for aggravated robbery apart from the application of § 16-90-121. However, in Crespo we also quoted from Missouri v. Hunter, 459 U.S. 359 (1983):
Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the same conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court may impose cumulative punishment under such statutes in a single trial.
Furthermore, the Arkansas Supreme Court has held that when two punishment statutes exist, a court is not prevented from using the more stringent provision. Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988). We hold that the sentence was not illegal.
Reversed and Remanded.
Cooper and Rogers, JJ., agree. | [
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Melvin Mayfield, Judge.
Welch’s Laundry and Cleaners has appealed a decision of the Workers’ Compensation Commission which awarded Vera A. Clark benefits for injuries suffered in a fight with a co-worker. The Commission held that because the altercation occurred during business hours, on the employer’s premises, and as the result of a quarrel having its origin in the employment, the injuries were compensable. Appellant argues on appeal that the Commission erred in finding that there was a causal relationship between the employment and the altercation and in not finding that the claimant was barred from receiving benefits as the aggressor.
The compensability of an injury suffered in an on-the-job assault was explained in San Antonio Shoes v. Beaty, 28 Ark. App. 201, 771 S.W.2d 802 (1989).
The general rule applicable here has been restated several times. Injuries resulting from an assault are com-pensable where the assault is causally related to the employment, but such injuries are not compensable where the assault arises out of purely personal reasons.
In Westark Specialties et al. v. Lindsey, 259 Ark. 351, 353, 532 S.W.2d 757, 759 (1976), the supreme court quoted Larson with approval:
Assaults arise out of the employment either if the risk of assault is increased by the nature or setting of the work, or if the reason for the assault was a quarrel having its origin in [the] work. (Emphasis in Lindsey.)
The court also said that a “causal connection with the employment may be shown by connecting with the employment the subject matter of the dispute leading to the assault.” 259 Ark. at 353, 532 S.W.2d at 759.
28 Ark. App. at 203-04. (Citations omitted.)
When reviewing a decision of the Workers’ Compensation Commission, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Bearden Lumber Company v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).
Vera A. Clark was employed by Welch’s Laundry & Cleaners on April 5, 1990, when she suffered injuries in a fight with a co-worker. There was evidence that Vera Clark and Joanna Sullivan had been friends for many years. Mrs. Clark testified that on April 4 she went home for lunch, became ill, and did not return to work. Mrs. Clark’s husband called the employer and reported her illness. According to her testimony, when she returned to work the next day Mrs. Sullivan told her, “All hell broke loose yesterday when you didn’t return back to work after lunch.” When Mrs. Clark asked why this happened, Mrs. Sullivan started cursing her, and an argument broke out. Mrs. Clark said Mrs. Sullivan kept “picking” at her all morning and after lunch Mrs. Sullivan walked past her, pointed her finger at her, and said “in a very angry tone of voice,” that they needed to talk after work. Mrs. Clark said she told Mrs. Sullivan to “go to hell,” and Mrs. Sullivan hit her “up side the head.” The women were separated by other employees and the manager sent them both home for the day, but they resumed fighting in the parking lot. Both women were subsequently fired.
The women and their husbands testified that the women had also fought eight years previously in a bar, but the women insisted that they had “patched up” their differences and remained friends. They said they socialized together and had been in no other arguments since the dispute eight years before. In fact, Mrs. Sullivan had been instrumental in getting Mrs. Clark the job at the cleaners.
Jeff Welch, assistant manager at the cleaners, testified that on April 4 when Mrs. Clark did not return to work Mrs. Sullivan told him she had called Mrs. Clark’s home and got no answer, even though Mrs. Clark was supposed to be home sick. Welch said Mrs. Sullivan had no authority to check on Mrs. Clark for the business. He also admitted that, after much prodding from Mrs. Sullivan, he had told Mrs. Sullivan that Mrs. Clark’s husband had told him that Mrs. Clark had “kicked her [Sullivan’s] rear end before and looked like she was going to have to do it again.” Welch said the next day, when the women fought, he ran in when he heard Mrs. Clark calling him and saw the women lying in the floor.
Joanna Sullivan testified that on April 4 after lunch she called Mrs. Clark because she was concerned about her health but did not get an answer. She said she told “some of the girls” and Mr. Welch about Mrs. Clark not being at home. She admitted she was upset because, “I was the only one left there expected to do all the work.” She denied, however, that she was trying to get Mrs. Clark into trouble. Mrs. Sullivan admitted that the next day she and Mrs. Clark got into an argument over Mrs. Sullivan telling co-workers that Mrs. Clark was not at home the afternoon before when she was supposed to have been sick, but she said she did not curse Mrs. Clark until after lunch when Mrs. Clark started cursing her and calling her a liar. She said she told Mrs. Clark, “Ann, we need to talk after work,” to which Mrs. Clark replied, “You go straight to hell, bitch,” and shoved her.
John Seymore, a college student who worked afternoons in the laundry, testified that he was standing beside Mrs. Clark when the fight broke out. According to him, Mrs. Sullivan walked by, pointed at Mrs. Clark and said, “I need to talk to you. I want to talk to you after work,” to which Mrs. Clark replied something like, “Go to hell”; then “they both kind of jumped at each other and they started fighting, and they fell into the clothes and they hit a table and then they fell on the floor.” He said Jeff Welch came running and “he grabbed one of them and I grabbed the other one and pulled them apart. And that was about it. Jeff told them to go home.” When asked which one actually started the fight he replied, “I don’t think either one of them really started it. I mean, it was kind of both of them.”
The Commission held:
The greater weight of the evidence indicates that the dispute was over Sullivan’s displeasure and subsequent actions concerning claimant’s absence from work the afternoon of April 4, 1990. The evidence simply will not support a finding that the altercation had anything to do with their past difficulties.
Appellant argues that the Commission erred in finding that the preponderance of the evidence supported a causal relationship between the employment and the altercation. Appellant cites Townsend Paneling v. Butler, 247 Ark. 818, 448 S.W.2d 347 (1969), in which it was held that “injuries are not compensable where the assault arises out of purely personal reasons.” Appellant maintains that this fracas was the culmination of a longstanding personal animosity between Mrs. Clark and Mrs. Sullivan involving a relationship that was personal, complex, and stormy. Appellant argues that the “barroom fight” apparently remained vivid in the memories of the claimant and her husband; and to the Clarks, “the fight remained the moment of victory to be remembered and potentially relived.” Appellant says that these strong feelings had nothing to do with either the claimant’s or Mrs. Sullivan’s employment at the laundry, and “the spark which ignited the volatile relationship” was not the employment but the claimant’s personal words of insult, “bitch” and “go to hell” following closely on warnings of past “whippings” and the prediction of future ones.
We think the testimony will support a finding that Mrs. Sullivan became angry when Mrs. Clark did not return to work after lunch on April 4 because Mr. Welch had already given one worker the afternoon off due to lack of work; that when Mrs. Clark did not return from lunch that left Mrs. Sullivan to do all the work by herself; and then she called Mrs. Clark’s home, allegedly to check on her well-being, and reported to all who would listen that Mrs. Clark was not at home. The next day words were exchanged about Mrs. Clark’s absence, cursing started, and the dispute escalated into a physical altercation. However, the dispute, the Commission found, did involve the work.
Appellant’s second argument is that the Commission erred in finding that Ark. Code Ann. § 11 -9-401 (a) (2) (1987) did not bar the benefits. That statute provides:
However, there shall be no liability for compensation under this chapter where the injury or death from injury was substantially occasioned by intoxication of the injured employee or by willful intention of the injured employee to bring about the injury or death of himself or another.
Appellant contends that Mrs. Clark was the aggressor, or at least a co-aggressor, and thus should not be entitled to benefits. The Commission did not find this to be the case and awarded benefits. We think there is substantial evidence to support that decision.
Affirmed.
Cracraft, C.J., and Danielson, J., agree. | [
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George K. Cracraft, Judge.
TEC appeals from an order of the Arkansas Workers’ Compensation Commission and advances several arguments. We dismiss the appeal because we conclude that the order appealed from is not final and appealable.
Arkansas Code Annotated § 11-9-711(b)(2) (1987) provides that appeals from the Commission to this court shall be allowed as in other civil actions. For an order to be appealable, it must be final. To be final, an order must dismiss the parties from the court, discharge them from the action, or conclude their rights as to the subject matter in controversy. American Mutual Insurance Co. v. Argonaut Insurance Co., 33 Ark. App. 82, 801 S.W.2d 55 (1991); Samuels Hide and Metal Company v. Griffin, 23 Ark. App. 3, 739 S.W.2d 698 (1987). Ordinarily an order of the Commission is reviewable only at the point where it awards or denies compensation; interlocutory decisions and decisions on incidental matters are not reviewable for lack of finality. Stafford v. Diamond Construction Co., 31 Ark. App. 215, 793 S.W.2d 109 (1990); Mid-State Construction Company v. Sealy, 26 Ark. App. 186, 761 S.W.2d 951 (1988); Hernandez v. Simmons Industries, 25 Ark. App. 25, 752 S.W.2d 45 (1988).
The record before us reflects that appellee sustained a compensable injury in March 1989. Appellee did not select a physician, but was seen by eight physicians in several specialized fields of medicine. According to the Commission’s findings, the treatment had not appeared to resolve appellee’s difficulties, and the medical providers were not able to agree upon a diagnosis of the etiology of her difficulties, the need for future medical treatment, the type of treatment needed, if any, or the degree of any permanent partial disability she may have suffered as a result of her injuries.
Appellee filed a petition requesting that she be given an independent medical evaluation, and that her permanent partial disability be determined. At the hearing, she withdrew the request for an independent evaluation and substituted a petition in which she requested a change of physicians to Dr. Douglas Parker. By agreement of the parties, the issues to be litigated were limited to (1) the extent of any permanent disability that appellee may have suffered, (2) appellee’s entitlement to a change of physicians to Dr. Parker, and (3) attorneys’ fees.
Arkansas Statutes Annotated § ll-9-514(a)(l) (1987) provides in pertinent part as follows:
If the employer selects a physician, the claimant may petition the commission one (1) time only for a change of physician, and if the commission approves the change, with or without a hearing, the commission shall determine the second physician and shall not be found by recommendations of claimant or respondent. However, if the change desired by the claimant is to a chiropractic physician, the claimant may make the change by giving advance written notification to the employer or carrier.
In his opinion, which the Commission adopted as its own, the administrative law judge stated:
After considering all of the evidence presented, it is my opinion that the [appellee] is entitled to a change of physicians under A.C.A. § 11-9-514, however, the unusual fact situation in this case makes it difficult for me to determine what type of specialist I should select or provide the [appellee] with any future reasonable and necessary treatment for her compensable injury. . . .
Although the [appellee] has withdrawn her request for a medical evaluation, this Commission is vested by statute with discretionary authority to require such an examination or evaluation not only at the request of one or more of the parties, but also on its own motion. It is my opinion that such an evaluation or examination is not only advisable, but is necessary, to determine the area of specialty or expertise of the physician who is to be selected by me to provide the [appellee] with further treatment for the compensable injury, if any such treatment is necessary. [Emphasis added].
The administrative law judge directed that appellee undergo an evaluation by Dr. Marcia Hixson for her opinion as to (1) the type of medical specialist most likely to be qualified to provide appellee with any further reasonable and necessary medical treatment, if any, and (2) whether appellee had achieved maximum healing and, if so, the extent of her anatomical impairment, if any. See Ark. Code Ann. §§ 1 l-9-207(a)(l) and 1 l-9-508(a) (1987). The administrative law judge concluded as follows:
8. The [appellee] is entitled to a change of physicians pursuant to A. C. A. § 11-9-514, however, a selection of the appropriate physician to provide [appellee] with any further reasonable and necessary medical treatment for the compensable injury, if such is required, is reserved pending receipt of the evaluation of the [appellee] by Dr. Hixson.
9. The issue of the existence and extent of permanent disability resulting from the compensable injury, attributable to both anatomical impairment and functional disability, is reserved for further determination following the ordered evaluation by Dr. Marcia Hixson and pending receipt of her findings. [Emphasis added].
Neither appellee’s petition for a change of physicians nor the extent of her permanent disability was finally determined. They were reserved for further action by the Commission upon the receipt of the report of Dr. Hixson. As such, the Commission’s order was interlocutory in nature, and the Commission’s directions that appellant pay Dr. Hixson a fee for the evaluation and pay appellee an attorney’s fee for the change of physicians yet to be determined were merely incidental thereto.
Dismissed.
Mayfield, J., dissents.
Melvin Mayfield, Judge,
dissenting. This is another chapter in the continuing saga of the search for the appealable order in workers’ compensation cases. The need for an agreement upon what constitutes a final, appealable order in these cases becomes clearly evident upon a reading of the majority, concurring, and dissenting opinions in Hampton and Crain v. Black, 34 Ark. App. 77, 806 S.W.2d 21 (1991). That confusion reigns is demonstrated by the fact that each of those opinions rely, to some extent, on the case of Gina Marie Farms v. Jones, 28 Ark. App. 90, 770 S.W.2d 680 (1989). However, like the blind men examining the elephant, each opinion exhibits a different concept of the matter examined.
The concept of the majority in the instant case is especially at variance with Gina Marie Farms which recognized the appeala-bility of an order which ends a “separable branch” of the litigation. In the instant case, a number of issues were presented to the administrative law judge. One issue was whether the appellee should have a change of physicians. The law judge thought the appellee needed a change and it was the judge’s duty to choose a new physician. Since he did not know which one to choose, he thought it “not only advisable but necessary” to have appellee evaluated by a doctor who could tell the law judge the “area of specialty or expertise of the physician” that the law judge should approve for further treatment, if necessary, of the claimant. I cannot understand why the law judge’s order, affirmed by the Commission, directing appellee to undergo such an evaluation did not end a separable branch'of the litigation and was not appealable. See my dissenting opinion in Stafford v. Diamond Construction Co., 31 Ark. App. 215, 793 S.W.2d 109 (1990).
I dissent from the majority decision dismissing this appeal. | [
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Judith Rogers, Judge.
In this workers’ compensation case, appellant, Sherrie Robinson, appeals from the Commission’s decision in which it determines that she was not entitled to receive death benefits as a beneficiary of the deceased employee. Appellant raises two issues on appeal. She first contests the Commission’s exercise of jurisdiction, and secondly she argues that the Commission’s finding that she had failed to meet the dependency requirement is not supported by substantial evidence. We affirm.
On January 3,1990, Lee Robinson, a truck driver, was killed in an accident in Oklahoma during the course and scope of his employment with appellee, Ed Williams Construction Company. The employer accepted the death as compensable and requested a hearing to determine the deceased’s statutory beneficiaries.
The deceased had married Marva Jo Robinson on April 14, 1963, and they had two children, who are now adults. The deceased and Marva Jo separated in 1977, but there is no evidence that they were ever divorced. After his separation from Marva Jo, the deceased lived with Mary Louise Willis, and a child, Katrina, an appellee herein, was born of this relationship. In 1984, the deceased began living with appellant, and they were married on December 22, 1987. Appellant and the deceased separated in February of 1989. There is no record that this marriage ended in divorce or that divorce proceedings were instituted prior to the deceased’s death. From April to September of 1989, the deceased lived with a woman by the name of Veronica Hall.
The only potential beneficiaries at issue before the Commission were appellant, Marva Jo and Katrina. The Commission-found in favor of Katrina, but held that appellant and Marva Jo were not entitled to benefits based on findings that neither of them had shown that they were dependent on the deceased within the meaning of Ark. Code Ann. § 11-9-527(c) (1987). Only appellant brings this appeal from the Commission’s decision.
As her first issue on appeal, appellant contends that the Commission erred in not sustaining her objection to its exercise of jurisdiction. Appellant does not challenge the Commission’s jurisdiction in the traditional sense, as it appears that all the parties involved were residents of Arkansas. Instead, appellant argues that the Commission did not acquire jurisdiction because the proceedings were initiated at the behest of the employer, when none of the potential beneficiaries had filed a claim. We find no merit in this argument.
Upon receiving notice, the employer accepted Mr. Robinson’s death as compensable, and by statute the company was obligated to begin the payment of benefits in fifteen days from the receipt of notice, or else risk the imposition of a penalty upon unpaid installments. Ark. Code Ann. § 11-9-802 (1987). Under the circumstances of this case, the employer was faced with the obvious dilemma as to whom it should pay; therefore, it requested a hearing for the resolution of this issue. Without question, it is within the province of the Commission to determine who are the statutory beneficiaries of a deceased employee. We perceive no jurisdictional defect simply because it was the employer who submitted the issue for the Commission’s determination.
Under this first point, appellant also asserts that she had filed a claim for compensation benefits in Oklahoma, where the deceased met his death, and she argues that, because she preferred to litigate her claim there, the Commission erred in rendering a decision as to her status as a beneficiary. We disagree.
Appellant’s argument is based on the misconception that the proceedings before the Arkansas Commission and her claim in Oklahoma were mutually exclusive. To the contrary, all states having a legitimate interest in the injury have the right to apply their own diverse rules and standards, either separately, simultaneously or successively. Missouri City Stone, Inc. v. Peters, 257 Ark. 917, 521 S.W.2d 58 (1975). Thus, claims for compensation benefits may be instituted in both states having jurisdiction over the claim. See Industrial Commission of Wisconsin v. McCartin, 330 U.S. 622 (1946); Missouri City Stone, Inc. v. Peters, supra; McGehee Hatchery Co. v. Gunter, 234 Ark. 113, 350 S.W.2d 608 (1961). As discussed above, the question of determining the deceased’s beneficiaries, under Arkansas law, was one that was properly before the Commission. That was the only determination to be made. Those proceedings provided no obstacle to appellant’s pursuing her claim in Oklahoma.
Appellant next argues that the Commission’s finding that she was not dependent on the deceased employee is not supported by substantial evidence. It was the appellant’s testimony at the hearing that after their separation the deceased gave her $100 in cash every two weeks to help her pay bills. Although she provided no deposit records, she said that she deposited this money into her bank account. She also testified that he continued to give her money until the time of his death, and that she depended on him to help her make ends meet. She also said that she and the deceased were attempting to reconcile their differences after he separated from Veronica Hall.
In addressing this issue, we first point out that the Commission made no determination as to whether either appellant or Marva Jo was the deceased’s widow as that term is defined at Ark. Code Ann. § 11-9-102(12) (1987). Instead, the Commission found that appellant had not shown that she was dependent on the deceased employee, by stating:
Just as (Marva Jo) never made an effort to enforce whatever legal right to support she may have had from the decedent, [appellant] also following her separation from the decedent never made any attempt to enforce whatever legal right to support she may have had. Given this fact, as well as the lack of other sufficient evidence proving that [appellant] had a reasonable expectation of support from the decedent, we find that [appellant] has failed to prove by a preponderance of the evidence that she is a beneficiary entitled to compensation benefits.
Dependency is a fact question to be determined in the light of the surrounding circumstances. Doyle’s Concrete Finishers v. Moppin, 268 Ark. 167, 594 S.W.2d 243 (1980). The findings of the Workers’ Compensation Commission must be upheld on review if there is substantial evidence to support them. Public Employee Claims Division v. Tiner, 37 Ark. App. 23, 822 S.W.2d 400 (1992). The issue on appeal is not whether this court would have reached the same results as the Commission on this record or whether the testimony would have supported a finding contrary to the one made; the question here is whether the evidence supports the findings which the Commission made. Bankston v. Prime West Corp., 271 Ark. 727, 601 S.W.2d 586 (Ark. App. 1981). Before we can reverse a decision of the Commission, we must be convinced that fair-minded persons with the same facts before them could not have reached the same conclusion reached by the Commission. Public Employee Claims Division v. Tiner, supra.
The applicable statute is Ark. Code Ann. § 11-9-527(c) (1987), which provides in part that compensation for the death of an employee shall be paid to those persons who were “wholly and actually” dependent upon the deceased employee. In Roach Mfg. v. Cole, 265 Ark. 908, 582 S.W.2d 268 (1979), the court held that when the widow was not living with the employee at the time of his death, there must be some showing of actual dependency. However, the test of “actual dependency” does not require a showing of total dependence. A finding of some measure of actual support or a reasonable expectation of it will suffice. Pinecrest Memorial Park, Inc. v. Miller, 7 Ark. App. 185, 646 S.W.2d 33 (1983). Here, it was shown that the deceased and appellant had been separated for eleven months prior to his death. He had not returned to her even after his separation from Ms. Hall. Appellant was employed and, as noted by the commission, she had taken no action to seek whatever legal right to support she may have had. With regard to appellant’s testimony that she was receiving support from the deceased, questions concerning the credibility of witnesses and the weight to be given their testimony are exclusively within the province of the Commission. Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991). In light of all the attendant circumstances, we cannot say that fair-minded persons with the same facts before them could not have reached the decision made by the Commission.
Affirmed.
Cooper and Jennings, JJ., agree. | [
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Melvin Mayfield, Judge.
On November 6,1986, the State of Arkansas filed a petition for seizure and forfeiture against David Davison, pursuant to Ark. Stat. Ann. § 82-2629 (Supp. 1985) (now codified as Ark. Code Ann. § 5-64-505 (1987)). Later, in a separate case, Davison was convicted of possession of a controlled substance with intent to deliver. On March 1,1989, the conviction was affirmed, in the Arkansas Court of Appeals by an opinion not designated for publication. On April 11, 1990, a judgment of forfeiture was entered nunc pro tunc to January 11, 1990, ordering that Davison’s vehicle and pistol be forfeited to the State of Arkansas and that the $4,730.00 cash found in the vehicle be forfeited, one-half to the Searcy County Sheriffs discretionary fund and one-half to the Searcy County Indigent Attorney’s Fees Fund.
Ark. Stat. Ann. § 82-2629(a) allows forfeiture of, among other things, controlled substances and their containers, equipment used in manufacturing and delivering controlled substances, vehicles used to transport controlled substances, and any valuables obtained as a result of the exchange of controlled substances. Furthermore, this section provides for a rebuttable presumption that all valuables found in close proximity to controlled substances are forfeitable, and the burden of proof is upon the claimant of the property to rebut this presumption.
A forfeiture is an in rem civil proceeding, independent of any criminal charges which may be pending, to be decided on a preponderance of the evidence. Limon v. State, 285 Ark. 166, 685 S.W.2d 515(1985).A forfeiture may be ordered by the court when the court “finds upon a hearing by a preponderance of the evidence that grounds for a forfeiture exist. . . .” Ark. Code. Ann. § 5-64-505(e) (1987); Beebe v. State, 298 Ark. 119, 765 S.W.2d 943 (1989). Because the forfeiture statute is penal in nature and because forfeitures are not favorites of the law, we interpret the statute narrowly. Beebe, supra. On appeal, we reverse the findings of the trial court only if clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a); Gallia v. State, 287 Ark. 176, 697 S.W.2d 108 (1985).
In this appeal, Davison argues that the seizure and forfeiture of his property was improper because it did not comply with Ark. Stat. Ann. § 82-2629(b)(l) (Supp. 1985) (now Ark. Code Ann. § 5-64-505(b)(l) (1987)). That statute provides:
(b) Property subject to forfeiture under this Act may be seized by any law enforcement agent upon process issued by any circuit court having jurisdiction over the property on petition filed by the prosecuting attorney of the judicial circuit. Seizure without process may be made if:
(1) the seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant; ....
Appellant also argues that the court failed to hold the hearing promptly, pursuant to Section (c), which provides:
(c) In the event of seizure pursuant to subsection (b), proceedings . . . shall be instituted promptly.
The petition for forfeiture was filed on November 6,1986, status hearings on the petition were held on December 8, 1988, and December 14,1989, but the forfeiture hearing was not held until January 11, 1990.
The “prompt hearing” issue can be disposed of quickly. In Murray v. State, 275 Ark. 46, 628 S.W.2d 549 (1982), the Arkansas Supreme Court held that an appellant cannot fight a forfeiture on its merits and then, once he has lost, raise the failure to hold a prompt hearing as support for the argument that the proceeding should never have been conducted at all. Here, on appeal, the appellant is raising this issue for the first time.
Appellant’s other argument contends that the state failed to present any evidence at trial to support the trial court’s order of forfeiture. He says that Officer Nick Castro stopped him on the pretext that his vehicle had no license plate; that pretextual stops are prohibited by South Dakota v. Opperman, 428 U.S. 364 (1976), and United States v. Wilson, 636 F.2d 1161 (8th Cir.1980); and that the state presented no evidence to prove that he possessed a controlled substance with the intent to deliver in violation of Ark. Stat. Ann. § 82-2617 (Repl. 1976) (now Ark. Code Ann. § 5-64-401).
Officer Nick Castro testified:
On October 21,1986, it was about 5:00 p.m., I was on my way to Mr. Davison’s house. He was wanted for questioning in an assault that occurred the evening before. I was given a vehicle description of what he’d probably be driving, and it was supposed to be a late model, silver, Nissan, four-wheel drive pickup. I was also given a physical description of Mr. Davison, himself. And, just before I got to his residence, at the intersections of County Road 34 and 233, I observed a pickup matching that description leaving a residence. I observed the driver and it matched — also matched the description of Mr. Davison. The pickup didn’t have any license plates on it; I stopped it under those pretenses. As soon as I stopped the vehicle, Mr. Davison exited the driver’s side of the vehicle and approached my vehicle. I met him in between the two vehicles. I immediately noticed a strong smell of marijuana on his person. I told Mr. Davison that he was wanted for questioning in an assault case. I then attempted to place him under arrest. I got one handcuff on one arm, and he began to resist, at that time. I had to physically restrain him and put the other handcuff on him, and then I placed him in the back of the patrol car. I then walked back up to his vehicle and looked in the window, and I could smell a strong odor of marijuana. I also observed a shotgun lying in the front passenger seat. I also observed a partially smoked, hand-rolled cigarette in the ash tray. I then called for a wrecker, at that time. I transported Mr. Davison to the Sheriffs office, and during the booking procedure, a small bag of marijuana was found in one of his pockets.
Castro also testified that an inventory search of the vehicle revealed a paper sack containing approximately two pounds of marijuana, $4,730.00 cash, a shotgun, a .357 revolver, money wrappers and ammunition. He said they also found several small pieces of scrap paper that had little notes written on them; for instance, a person’s name, an amount and a dollar figure.
A vehicle used to transport, or facilitate the transportation, of a controlled substance is subject to forfeiture, Ark. Stat. Ann. 82-2629(a)(4) (Supp. 1985), and may be seized without process if the seizure is incident to an arrest, Ark. Stat. Ann. 82-2629(b)(1) (Supp. 1985). Castro testified that he stopped appellant’s vehicle because it had no license plate and because appellant was wanted for questioning in an assault that had occurred the evening before. Once appellant got out of his truck and Castro smelled marijuana on him, Castro had probable cause to arrest appellant. Castro could then search appellant’s truck incident to the arrest. Castro’s testimony that two pounds of marijuana was found in the truck supports the trial court’s finding that the truck was being used to transport marijuana and was, therefore, subject to forfeiture. See Ark. Stat. Ann. § 82-2629(a)(4) (Supp. 1985).
Money found “in close proximity to forfeitable controlled substances” is “presumed to be forfeitable.” See Ark. Stat. Ann. 82-2629(a)(6) (Rebuttable Presumptions) (Supp. 1985). This means the state must demonstrate that the money was “very near” forfeitable controlled substances. Kaiser v. State, 24 Ark. App. 19, 25, 746 S.W.2d 559, rev’d on other grounds, 296 Ark. 125, 752 S.W.2d 271 (1988). Castro’s testimony that $4,730.00 cash was discovered in appellant’s truck, along with the marijuana, constitutes a preponderance of the evidence to support the forfeiture of the money.
In regard to the gun, in Beebe v. State, supra, the Arkansas Supreme Court reversed a forfeiture of guns found in Bebee’s house because the state produced no evidence showing the guns fell within the statutory description of the kind of property to be forfeited. The court stressed that the only provision of the forfeiture statute which might possibly permit forfeiture of guns is Ark. Code Ann. § 5-64-505(a)(2) (1987) (formerly Ark. Stat. Ann. § 82-2629(a)(2) (Supp. 1985)) which allows forfeiture of “all raw materials, products, and equipment of any kind which are used, or intended for use, in . . . delivering . . . any controlled substance.”
In this case, a. 3 5 7 revolver and ammunition were found in the truck. Officer Castro testified that people who deliver drugs are in the practice of carrying guns because they usually carry large quantities of money and deal with other drug dealers so they want to protect what they have. This testimony supports the trial court’s finding that the gun was being used in the delivery of marijuana and was subject .to forfeiture.
Affirmed.
Cooper and Danielson, JJ., agree. | [
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English, C. J.
There were two counts in the indictment in this case, which is similar in some of its features to the-case of Isaac Z. Cooper v. State, ante.
The first count charged in substance, that George M. Cooper, on the first day of June, A. D., 1881, in the county of Lawrence, etc., “feloniously did sell, barter or otherwise dispose of a certain mule of the value of fifty dollars, on-which said mule a lien then and their existed by virtue of a certain deed of trust executed by the said George M. Cooper on the twenty-eighth day of February, 1881, in favor of G. Kaufman, as trustee for the benefit of E. Krone & Co., etc.,, on which said deed of trust was the following endorsement, to-wit: This instrument is to be filed, but not recorded. E. Krone & Co., “and was duly filed in the office of the recorder of deeds in and for said county of Lawrence, he, the said George M. Cooper, then and there, not having the-consent of said G. Kaufman, trustee as aforesaid, or E. Krone & Co., soto do,” etc.
The second count charged, in substance, that said George M. Cooper on etc., at, etc., feloniously, did remove-bey ond the limits of said county of Lawrence, a certain mule of the value of fifty dollars, on which said mule a lien then and there existed by virtue of a certain deed of trust executed by said George M. Cooper, etc., etc., describing the deed of trust, etc., as in the first count.
I.Appellant entered a general demurrer in short to the whole indictment, which the court overruled.
The first count of the indictment, which charges that the appellant did sell, barter, or otherwise dispose of the mxde, was bad, for uncertainty, as held of the third count of the indictment in Isaac Z. Cooper’s case.
But the second count, charging the removal of the mule 00 beyond the limits of Lawrence county, in which the deed of trust was in legal effect recorded, was good, and demurrer being to the whole indictment, was properly overruled.
II. On plea of not guilty, appellant was tried by a jury there was a general verdict of guilty, and he was senténced to the penitentiary for one year, and refused a new trial.
The bill of exceptions shows, that on the trial there evidence conducing to prove that after the deed of trust, described in the indictment, had been executed, acknowledged and filed in the office of the recorder of Lawrence county, and before the 1st of June, 1881, appellant, without the consent of the trustees or beneficiaries, took the mule to Randolph county, and there sold or traded it to one, Bud Davis. The evidence related to, and sustains the charge in the second count of the indictment, and the general verdict was good, though the first count was bad, as held in Isaac Z. Cooper’s case.
III. After the state had closed, having introduced tional evidence to that stated above, which will be noticed below, appellant offered to prove by Amanda Horseman, his mother, that he was a minor, but twenty years old when the deed of trust was made, and was still under twenty-one years of age; that his father was dead, and that he had no guardian, and that she resided in Randolph county ;• which the court excluded.
.Appellant offered to introduce no other evidence.
The recitals of. the deed of trust,.executed 28th February, 1881, showed that the appellant represented to Krone & Co. that he intended to, and agreed to cultivate, that year, twenty acres in cotton on a farm in Lawrence county, known as the Jenkins place; that he was then indebted to them in the sum of fifty dollai’S for supplies theretofore furnished, and proposed to purchase of them such other ■articles of merchandise as might be necessary or useful to himself, his family and laborers, for the purpose of making and gathering his said crop, etc.
The- deed, after the recitals, proceeds to convey to the trustee the future cotton crop and the mule in controversy, to be kept on the farm' as security for the then- indebtedness of appellant, and for the supplies to be thereafter furnished by Krone & Co.
The state proved by Kaufman, the trustee, that Krone & Co. furnished the appellant, after the execution of the trust deed, about fifty dollars in value, of supplies ; that the goods bought by appellant, under the trust deed, were such as were necessary for him and his wife to live upon and to make a crop with; that he had a wife, lived to himself, and owned the property mortgaged.
The State also proved that E. Krone went to the residence of appellant in Lawrence county, in June, 1881, and asked him where the mortgaged mule was; that he first denied having sold or removed the mule, but upon being pressed as to where it was, finally said he had taken it to Randolph county and sold it to Bud Davis ; said he knew he was doing wrong when he removed and Sold the mule, and wanted to compromise the matter with Krone.
It was also proved that after this that Krone went to Randolph county and got the mule.
The only material matter which appellant offered to prove by his mother was that he was but twenty years of ■age when he executed the trust deed, and had not reached majority at the time of the trial. He did not offer to prove by her or any other witness, that the supplies, advanced upon the trust deed, were not necessaries, as proved by Kaufman, the trustee.
The trust deed was not void, for the reason that appellant was a minor when it was executed, nor was it voidable, to the extent that it was for necessaries.
Appellant was living to himself and had a wife, and was liable for necessaries for both. Metcalf on Contracts, p '69, etc.
An infant is not bound by any express contract for necessaries to the extent of such contract, but is bound only on .an implied contract to pay the amount of their value to him. When the instrument given by him as security for payment is such that, by the rules of law, the consideration cannot •be enquired into, it is void and not merely voidable ; but whenever the instrument is such that the consideration thereof may be enqired into, he is liable thereon for the true value of the articles for which it was given. Ib.,p 75; Reeve’s Domestic Relations, 229-230; Stone v. Dennison, 13 Pick., 6-7; Guthrie v. Morris et al, 22 Ark., 411.
In the case iast cited, this court approving the above rule, held that an infant might bind himself for necessaries by a bond, inasmuch, as by statute, the consideration of a bond anight be inquired into and impeached, and that in a suit on the bond, plaintiff might recover, if infancy was pleaded, •■so much as was for necessaries.
The deed of trust was under seal, but private seals being .•abolished, the seal added nothing to the dignity or solemnity of the instrument.
In a foreclosure suit the consideration would be open for inquiry', and recovery had, on plea of infancy, for the value -of such of the supplies as were necessaries.
Appellant was not therefore prejudiced by the exclusion, of the evidence offered as to his age. Of itself, (and no-other was proposed,) it would have been of no legal benefit to him, if admitted. Lawrence County v. Coffman, 36 Ark., 642.
The deed of trust was not void or voidable, to tbe extent it was for necessaries, and appellant could not treat it as-invalid, or disaffirm it by removal and sale of tbe mule.
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Eakin, J.
By Act of January 23, 1875, any party to a suit, upon his own verified petition, supported by the affidavits of two credible witnesses, may obtain an order for a change of venue. The order may be made in term time, at the calling of the case, or by the judge, at any time, on due-notice to the adverse party or his attorney.
Section 4 of the Act provides that in all cases where-such order may be made, the clerk shall make a certified copy of all the orders in the case, and “upon the payment of the transmission fees, hereinafter provided,” shall transmit the papers in the case to the clerk of the court to which the venue is changed, for which he shall receive ten cents a mile both ways, to be paid by the party obtaining theofider.
Sec. 5 is, in full, as follows : “ If the above mentioned, fee is not paid, or arranged with the clerk, within fifteen days from the granting of said order, the order shall be null and void. Provided, That the judge granting the order may extend the time of making such payment, which shall be-stated in the order. Provided further, That the adverse party, if he chooses, may make such payment. But one-order for a change of venue shall be granted to the same-party in the same action.”
By Section 6, it is provided that the action shall stand for-trial in the court to which the change is made, at the first term commencing more than ten days from the filing of the papers in its office.
In this case the papers were transmitted to, and filed in, the office of the Crawford Circuit Court, more than ten days-before the commencement of its next term after the order-had been made, but the fees were not paid nor arranged * as the affidavit states, within fifteen days after the order. The only question is, upon the construction of the- 5th section.. Is it imperative that the fee should be paid or arranged within the time, or the order shall be as if never made ? Or is it allowable to the clerk to transmit the papers within a reasonable time upon payment of the fee, or without any payment of the fees at all?
1st. As to the propriety of the writ of mandamus.
The law never presumes nor admits its own uncertainty. Acts may be difficult to construe ; principles hard to discover. They may require of the judges patient thought, laborious investigation of authorities, and the aid of learned counsel. But when constructions are made, or principles cleared, the ■courts adjudge the law. They do not create or determine it by discretion. It is announced as what it was, and is. If a •law be indeed mandatory, leaving in the judge no discretion as to obedience, it is none the less so, because he may at first mistake its meaning, or find it difficult of discovery. The •duty to construe, does not destroy the obligation of obedience, nor make that a matter of judicial discretion, which, if more clearly expressed, would at first have been seen to •be mandatory.
The Hon. Circuit Judge construed the law to be, in accordance with the plain import and strict construction of the language of the Act, and made the efficacy of the order for .removal to depend alone upon thsfaot of payment, or arrangement ; holding that to transfer the jurisdiction,the fee must not -only have been paid to, or arranged with, the clerk, but also "that it must have been done within fifteen days from the time •of making the order ; holding further, that the failure was a ■matter which might be shown by affidavit. ■
Statutes are to be construed according to the intention of the Legislature, of which the language of the Act is ordinarily the test, but not always the conclusive indication. Cases sometimes arise in which the courts, to reach the ¿rue intention, must disregard the ordinary significance of the language. Neither grammar nor etymology are parts of the Common or Statutory Law. They constitute its “ context,” in which, according to the quaint old English writers, it is not well to stick. They but clothe the Legislative intent, which makes the equity of Statute, and is more potent than language. After the intention is discovered, then the courts have nothing to do with its policy, but must enforce it, if constitutional.
Mr. Sedgwick, in his work on Const, and Statutory Law, p. 254, 2d JEd., supporting the remark by full citations, says: that it “has been repeatedly asserted and practiced upon' by the highest authority ” that in construing a Statute,“the judges have a right to decide,in some cases, even in •direct contravention of its language.” The remark has been approvingly quoted by Mr. Hammond in his notes to Siebers “ Legad and Political Hermenentics,'1'’ appendix,p. 285 ; and the digests of the several American States show its universal adoption. Let us be content for the present to notice some decisions to the same effect, of our own, as follows : Reynolds v. Holland, 35 Ark., 56; Haney v. The State, 34 Ib., 263; Wassell v. Tunnah, 25 Ib., 101: McKenzie v. Murphy, 24 Ib., 155.
In Woodruff v. State, 3 Id., 285, it was held, that when the intention of a Statute should be discovered, it ought to be followed, although it might seem contrary to the letter.
In Wilson v. Biscoe, 11 Ib., 44, it was considered that, if from a view of the whole Act, the intent is different from the literal import of some of its terms, then the intent should prevail.
By Sec. 2 of Chap. 101 of the Revised Statutes, it was provided that “every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder’s office for record and not before.” No language could be stronger, more express or explicit to convey the idea, that a mortgage should be no lien at all, before that time. Yet this court in Main et al., v. Alexander, 9 Ib., 112, held and has ever since rigidly adhered to the position that every mortgage was a lien between the parties, from the time of its execution, whether recorded or not. Chief Justice Johnson, in delivering the opinion, conceded that the language of the; Act was exceedingly broad and comprehensive, and, if taken in a literal sense, would forbid the creation of a lien by an-unrecorded mortgage. Yet the court would not conceive-that the Legislature really intended so unreasonable a thing-as to prevent parties from making such contracts between themselves, where third persons could not be injured; although there was nothing in the law, beyond the reason of it, to show that the Legislature meant anything else than it had said. A stronger case of the utter disregard of language, subordinating it wholly to intention, in the absence of all constitutional objections, cannot be found. The propriety of this decision, in this respect, has never been questioned.
With these views we will return to the case in judgment..
The Act is strictly remedial, and to be construed liberally,, to meet the evil intended to be alleviated, and to advance the remedy. “ Everything is tobe done in advancement of' the remedy that can be given, consistently with any construction that can be put upon it.” Sedgwick on St. and Const. Law, p. 309. The evil to be avoided was the hardship of compelling suitors to go to trial in any county, where there might be against them, or their cause, an undue-prejudice. Every citizen instinctively feels the injustice of being compelled to submit to this, and a change of venue is almost necessary, to preserve confidence in the impartiality of the courts. This policy of changing the venue is to be-advanced, and not embarrassed nor retarded, and those eon structions which have, the'.latter effect are to be avoided, if any others can be found consistent with the intent.
A secondary policy is also manifest, with the evil it is intended to remedy. The expense of transmitting the transcript between the counties, if made to fall upon the clerk, would be oppressive — even if he were only required to advance them, to be ultimately repaid. They would, in each cage, be certain, being twenty cents for each mile of distance. It was a plain, sensible, and obvious provision to require that the sum requisite for the purpose should, at an early day, be deposited with the clerk; and, as an incentive to prompt payment, to provide that unless that were done, the order made upon him, though peremptory in its terms, should have no binding force. He need not obey it, even if payment .should be afterwards tendered. As to himself, he might consider its efficacy gone — “ null and void.” But there is nothing within the Act which rigidly requires him, in any case, to send over the papers ■ within any definite time. They ought, if reasonably possible, to be at their destination full ten- days before the term of the court to which the venue may be changed ; but he might not be able to do that in fifteen days — even if the fee had been paid to him the day after the order ; and there is nothing apparent, in the reason of things, which would seem to preclude him from sending them with or without any tender, or payment, pr arrangement for the fee, at all. Upon the other hand, it is suggested very plausibly, and the suggestion has received the grave consideration it deserves, that the clause of the proviso is not wholly, nor even principally, for the bénefit of the .clerk; but that it is the policy of the Act to require payment in the limited time to stand as notice to the opposite party that the removal has been perfected, and the order converted from a conditional to a positive nature. If this were the design, the clerk could not receive the fee after the time, nor transmit the papers so as to have any effect.
There-is nothing in the language of the Act to indicate any intention other than that of protecting the clerk. In the first place, such notice as is supposed does not seem highly essential. The order for the change is made either in open court, with the knowledge of all parties ; or in vacation, on express notice. The opposite party knows where to follow the case; and, if the papers are not transmitted ten days before the next term, he knows that he need not attend. The Circuit Court business is done through attorneys, whose easy access to, and familiarity with, the clerks, render it easy, at all times, to keep watch of the case. But, above all, we feel sure that if the Legislature had meant to provide that the opposite party should know, definitely, in fifteen days, to.which court he was to resort thereafter, or had had that in view, in framing the Act, it would have adopted some apter mode, than to require that knowledge to be ascertained from something done privately between the petitioner and the clerk — or something which need not be done at all, but only in some vague fashion arranged; and concerning which the clerk need make no public entry, nor, so far as the law is concerned, tell a human being. Such an intention is not reasonably to be presumed from anything in the language of the Act. It is ingeniously reasoned out, but, after all, it is a mere speculation as to intent. The Legislature might have effected the policy indicated, very easily, by directing that the order for change of venue should be provisional, on the subsequent performance of some act in the clerk’s office within a certain time, to be noted of record, which would be notice to both courts, and to the parties in the suit, of the precise time when the jurisdiction had shifted. It did not do that, nor intimate an intention of accomplishing such an object.
Many inconveniences, with much confusion and uncertainty of jurisdiction, would surely arise from adopting the ■construction of the respondent. Neither court might, for •a long time, know where the jurisdiction really was, and much work might be idly done. For, if the objection be ■good at all, it would, in local causes, remain good after years of litigation and enormous expense. It might, th¿n, be insisted for the first time, by one party or the other, that the fee'had not been really paid within fifteen days, but in sixteen, or some other time; and the clerk had concealed the fact. Or, if the papers had not been transmitted, and the cause had proceeded in the original court, it might transpire that the fee actually had been paid in the fifteen ■days, and, for some cause, or change of purpose, the papers had not been sent. In either case, the whole proceedings might be void ; in the first, because jurisdiction Rad never been acquired; in the last, because it had been irrevocably divested. Besides, it does not comport with the Tespect and confidence due the recoi’ds of Superior Courts, to make the validity or invalidity of orders positive on their face, depend upon the occurrence or non-occurrence of trivial facts en pais, between individuals. We will not readily attribute to the Legislature such intent.
A fair construction of the Statute — the one attended with the fewest inconveniences, and absurdities, is to allow the clerk, after the fifteen days, to waive the non-payment of the fees, and to transmit the papers, if so disposed, ■although he can not be compelled to do so, and to make the jurisdiction of the court, to which a change of venue may be taken, depend, not at all upon the small matter of the payment or arrangement of a few dollars with the clerk, but upon the reception of the necessary papers, accompanied by the record, under seal, of the solemn order of the court transferring the cause.
We think the response to the alternative writ insufficient, and direct that it be made peremptory. | [
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OPINION.
Harrison, J.
Morgan, to whom the liquor was sold,
was a competent witness to prove his own age, and there was no error in permitting him to testify thereto, although his only knowledge of the date of his birth was derived from the family Bible. Edgar v. The State, ante. 219.
As the record of the proceedings in the Probate Court, for the removal of Morgan’s disabilities as a minor, was not incorporated in, or made part of, the bill of exceptions, we are unable to know upon what ground it was excluded from the jury; and passing bjr any consideration as to whether the subject-matter is within the jurisdiction of the Probate Court, and as to which we express no ojnnion, we must presume it was excluded for a sufficient cause.
The statute makes no exception as to minors who are working for themselves, or transacting business on their own account. The court, therefore, properly refused to allow the witness to answer the questions asked him bj^ the defendant.
The burden of proving the written consent or order of the parent or guardian was on the defendant. Edgar v. The State, Supra; Williams v. The Stale, 36 Ark., 430.
Ignorance of the fact that he was not of age, and the understanding or honest belief of the defendant, when he sold him the liquor, that he was, was not an excuse or justification. He sold it at his peril. Edgar v. The State, Supra.; Crampton v. The State, ante. 108; Redmond v. The State, 36 Ark., 58.
There was no error in the instructions, and the verdict -was sustained by the evidence.
Affirmed. | [
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Harrison, J.
The instruction objected to was properly-given. It stated the law as declared in Lyerly v. The State, 36 Ark., 39; and Sullivan v. The State, 32 Ark., 187.
That asked by the defendant was properly refused. It was misleading — tending to restrict the consideration of the-jury to the isolated facts to which it referred, and exclude-from their consideration the other evidence in the case. Reese v. Beck, 24 Ala., 651; Chappell v. Allen, 38 Mo., 213; Gruber v. Nichols, 36 Ill., 92.
Affirmed. | [
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Harrison, J.
The order on Sarber was a bill of -change, and as he was indebted to the defendant, or in other words, had effects of his in his hands, the defendant had . ( the nght to give it, ana upon its non-payment, was entitled to notice. Adams, Adm’r., v. Boyd, 33 Ark., 33.
The rule is well settled, that where the parties in different places, the notice should be deposited in postoffice, in time to go by the mail of the day after the dishonor, if the mail is not closed before early and convenient business hours of that day, in which case, it must be sent by the next mail thereafter,' or it may be sent by messenger, •or given personally, but must reach the party, at farthest, •on the same day it would have reached him in due course •of mail. 2 Dan. on Neg. Ins., sec. 1033, 1039.
That the defendant, when he gave the order, had really no expectation that Sarber would pay it — there was, however, no evidence of such fact — could make no difference. He had effects in his hands, and it was the duty of the payees to present it, and if not paid, give him due notice of its dishonor. The want of injury or prejudice to the drawer is not sufficient excuse for default in making demand or giving notice of dishonor. “The law requires,” says Daniel, “presentment and notice as conditions precedent to the fixed liability of the drawer and endorser, not merely as an indemnity against actual injury, but as security against a possible injury, which might result from the holder’s laches. It is true, that when the drawer has no funds in the drawee’s hands, he can, as a general rule, suffer no injury from want of presentment or notice ; but drawing in such a ease would be a fraud, and it is for that reason, rather than absence of actual injury, that presentment and notice are excused.” 2 Dan. on Neg. Ins., sec. 1176; Staples v. O’Kine, 1 Esp., 332.
The suit, however, was not on the order, but on the debt, for which it was given. 'If it was given as absolute payment of the debt, the debt was, of course, discharged; but. if not so given, did the failure to give notice of its dishonor have that effect? The authorities conclusively show that it did. Edwards says : “When a debtor'gives to his creditor a draft or bill of exchange, drawn' on a third person, and it is received in full satisfaction of the debt, when paid, the person so receiving it, assumes the duty of presenting it properlj'-, for acceptance and payment, and giving timely notice of its dishonor. Failing in cither of these respects, he makes the bill his own, and it is deemed a satisfaction of' the debt. So, when.a merchant buys a bill of goods, and gives a bill of exchauge in payment of the purchase money,, the vendor cannot recover in an action for the goods, without showing that the drawer has been regularly charged on the bill. Whether the bill is received as conditional payment, or on an agreement so to apply the money, -when collected, does not alter the principle ; for the duty of presenting the bill results from the nature of the security. Edwards on Bills, 423. Aud Daniel says: “So absolute is the necessity for notice to an indorser, in order to charge him, that if a note has been indorsed to the holder, in conditional payment of a debt, the failure to give notice to the indorser, will not only discharge the indorser, as a party to the note, but also as debtor upon the original consideration,, even though it be secured by a mortgage or deed of trust.
The note, then, is made ah absolute discharge of his liability, and the indorser must look solely to prior parties. And so in respect to a bill given in conditional payment.” 2 Dan. on Neg. Ins., sec. 971; Gracie v. Sanford, 9 Ark., 233; Adams, Adm’r., v. Boyd, supra.; Dayton v. Trully, 23 Wend., 345; 2 Am. Lead. Cases, 256.
It follows, that the court erred in its instructions to the-, jury, and in refusing to give those asked by the defendant..
The judgment is reversed, and the cause remanded. | [
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Eakin, J.
Upon the remand of this cause to the Circuit •Court, under the opinion in 33 Ark., 421, it was there tried by a jury upon the issue of payment alone, in which trial the verdict was for the defendant. After motion for a new trial, overruled, the plaintiff again appealed.
After the remand, the plaintiff moved fora rule •defendant to verify his amended answer. This answer before this court on the former appeal, and treated as good. Any objection to it was closed by the decision then rendered, It is still insisted upon by counsel in argument, and, as it was passed sub silentio before, it may not be amiss to say, now, that pleadings before justices, whether written or oral, •may be without verification; and when the transcript is removed to the Circuit Court, on appeal, there can be no •objection to allowing amendments on the same terms, under the sound discretion of the Circuit Judge.
As to payment, the evidence on trial was conflicting The •defendant, assuming the burden, introduced some tending to show that, by mutual understanding, he had, at J ° •times, rendered services, and given an order for money, to plaintiff, to be applied in payment of the notes, to an amount sufficient to cover those sued upon. Upon the other hand, 'the plaintiff introduced some to show other proper appropriations of the services and order; and that •nothing had, in fact, gone to the notes in suit, beyond the amounts thereon credited. In the course of the trial the pflaintiff objected to any evidence at all being given by defendant, of subsequent services rendered, or moneys furnished, by defendant, without a plea of set-off. The objection was overruled, and it is made one of the grounds for a new trial. The nature of the defense was that the servicesaud order had been rendered and given with a mutual view to the settlement of the notes. Proof of them was essential to the defense; although it was further necessary to show the mutual understanding. There was no error in admitting-the proof, primarily; and the jury were, as we shall hereafter see, properly instructed as to the effect of it, if not connected with proof of acceptance of the services, etc., by plaintiff, as payment.
Upon all the evidence, we would not feel authorized to-disturb the verdict merely upon a comparison of its weight. This rule, of course, has its limits, and must not be construed to give juries unlimited license to render shocking- and unreasonable verdicts, in gratification of predelictions, or prompted by passion or prejudice, merely by availing-•themselves of some dim show of evidence. No more definite-rule can be formulated than this; and each case must always depend upon its own circumstances-. Whilst judges-can not wholly ignore their own reason, and the common sense of mankind, in considering of verdicts, they will, nevertheless, in deference to the peculiar province of juries in our system, concede to them the power of determining for themselves the weight of evidence, under proper instructions as to the law, and without any appearance of undue influence, passion, or prejudice. The practical application of the rule may be in some cases difficult, in which cases it were best to leave verdicts undisturbed. This case does not present any such appearances, at least so manifestly as to annul the verdict. It must be determined on the instructions. Before proceeding to discuss them, we will first dispose of some of the other grounds set forth in the motion for a new trial.
One of them was on account of newly discovered evidence. Without going into, detail, it is sufficient to say that the motion does not satisfactorily show due diligence, nor does it appear, from the circumstances, that the matters were of such a nature as might not have, by ordinary diligence, been discovered. A considerable portion of it was cumulative; and, altogether, it does not appear that the Circuit Judge abused his discretion in the refusal.
The principles governing the practice in new trials have been often discussed, and as this case presents nothing new with regard to them, it is not expedient to swell this opinion, upon this point, beyond the mere announcement that we have examined the points, and concur with the ruling of the Circuit Judge.
It is alleged, as ground for new trial, that one of jurors was related to the defendant, both by blood and affinity, within the fourth degree, and failed to disclose ... , same upon his examination on voir dire. The motion supported by the affidavit of plaintiff alone, who merely says in general terms, that since the trial he has been informed and believes that the juror was related to the defendant in the fourth degree, without stating what the relationship was.
It would be very unjust to the juror to subject him to the moral imputation of perjury, upon such an affidavit.
The information may not have been correct, and the juror may have had a different opinion of the relationship.
Besides, the objection came too late. There was no showing of fraud intended or wrong done, or collusion 011 the part of defendant. See Daniels v. Guy et al., 23 Ark., 50; Fain v. Goodwin, 35 Ib., 109.
Recurring to the instructions, it is necessary further to premise that the plaintiff had introduced divers witnesses, who testified that the defendant had, before the commencement of the suit, and since, admitted his indebtedness to plaintiff, and had offered a tract of land in satisfaction. The court, on defendant’s motion, substantially instructed the jury, against plaintiff’s objections, that the burden of proof, under the issue of payment, being on the defendant, must, to justify a verdict in his favor, appear, from a preponderance of evidence, “that he paid to the plaintiff the whole amount due on the notes sued upon, and that the payment, if not made in money, was made by the delivery of property, or performance of labor, which was accepted by the plaintiff as payment.”
But “it is not necessary that he should support his answer by such evidence of payment as leaves no doubt upon the minds of the jury. Pie is entitled to a verdict if, upon the whole testimony in the cause, his answer appears to be sustained by the weight of testimony, however slight ■such weight may be.”
But for the change of expression from “preponderance” .in the first instruction to “ weight ” in the second, the two together would have contained a full, complete, and well formulated statement of the law applicable to the evidence. Preponderance is something more than weight. It is a ■superiority of weight, outioeighing. The words are not synonymous, but substantially different. There is generally a weight of evidence on each side in case of contested facts. But juries cannot properly act upon the weight of evidence, in favor of the one having the onus, unless it overbear, in some degree, the weight upon the other, in their opinion. Doubtless, Plis Plonor meant weight in its comparative sense ; and so persons, used to discriminate the exact import of words, would understand him, in connection with the ■first instruction ; but the mass of even intelligent men seize upon the general import of words and particular phrases,, without construing them as qualified by others. It can hardly be said, however, that the charge was erroneous. It was good, taken altogether, but the plaintiff, on his part,, had the right to have any obscurity concerning it so cleared as to prevent the jury from being misled.
This he first attempted by asking the court to instruct the jury that the defendant “must establish by a preponderance of evidence such payment, to the satisfaction of the jury.”
his might have thrown the jury upon Scylla in avoiding Charybdis. It is never necessary in a civil case that a jury J J J should be satisfied of the truth of their verdict, in the sense of resting upon it confidently. That principle belongs to criminal law. Civil verdicts should be given on preponderance alone for the party whose evidence, considered altogether, outweighs. that of the other as to the fact in issue ;. or against the one having the onus, if, on the whole, the weight seems balanced. The.modification asked might hhve' led the jury to suppose it necessary for the defendant to-prove payment beyond a reasonable doubt. It was properly refused.
But by another instruction, (the 5th,) the plaintiff asked the court to instruct the jury that the burden was on the defendant to prove the payment by a preponderance of testimony ,- “ and unless the jury believe that such preponderance of testimony exists, taking into consideration all the testimony in the cause, they will find for the plaintiff.”
This instruction was good, and necessary in connection with those given for defendant. The court refused it, and we think committed an error. The instructions given for defendant, if they had not been obscured by the change of language, would have superseded it; but the plaintiff, as it was, had the right to his also.
Upon the subject, of admissions, the court charged for defendant, against the objections of plaintiff, that they be received with caution ; and if,they should believe s¿a^ements of defendant, relied on as admissions, were made, if at all, long after the execution of the notes sued on, and in casual conversation, and without reflection, they were in themselves “ weak evidence.” “But,” continued the court, “ it is for the jury to consider such statements with all the facts and circumstances of the cause, and so form their opinion of the weight to be attached to them.”
The court refused to instruct for the plaintiff that admissions made by a party against his interest, as to indebtedness, are to be taken against the party making, and that if the jury believe that defendant admitted that he owed all or any part of the defendant’s claim, by offering to pay said claim in property or otherwise, they, will find for the plaintiff. In lieu thereof, the court, of its own motion, an<4 against objections, instructed the jury that if they believed that the defendant admitted his indebtedness to the plaintiff, and proffered to pay such indebtedness in property, or otherwise, but did not do so, such admissions, “if made fully and fairly, and on occasions to call out the truth, and upon reflection, may be considered by the jury as evidence tending to establish such indebtedness.”
The instruction upon this point, asked by plaintiff, is somewhat objectionable in its phraseology. An offer to pay a debt in property or otherwise, may go to a jury as evidence to be considered by them, of an implied admission that it was just and unpaid. It is notin itself, however, conclusive ■or binding. It may have been made to buy peace, or by way of compromise. Or a conscientious debtor might, as •often happens, make such an offer in an uncertain condition of his own mind, as to whether the debt had been paid or mot. Such an offer is rather evidence tending to show an •admission, than the means of making a binding admission. It is for-the jury to say. The instruction' requested seems amenable to this criticism, that it might convey to the jury the impression that an offer to settle was in itself an admission, upon finding which, it would be their duty to find for the creditor. The refusal of this instruction could'not be held erroneous.
The instruction given on this point, at the request of defendant, that the admissions should be received with caution, etc., and that the statements, under certain hypothetical conditions, were weak evidence, is based upon an instruction given in Prater, ad. v. Frazer and wife approved by this court in 11 Ark., 267. Instructions are not intended to settle abstract principles of law. They are given for the guidance of juxies in the particular case, with refex-ence to the rnony, and it is dangerous to rely upon them as abstract axid immutable principles applicable axrd proper in all cases. That case was one in which the title to slaves was contested, which title was claimed to have originated long before the suit in •axrother State. The-statements of defendant, relied on as admissions, were made five or six years before the trial. Under the circumstances the couxt sustained the instructions to the jury, that statements so made, were “the weakest possible evidence admitted in courts of justice.” The opinion is based upon the old case of Myers v. Baker, Hardin 549, which was not, at all, a case involving the propriety of instructions to a jury, It was a case in chancery, and the remarks were made by the judge, delivering the opinion, •arguendo, ixi estimating the evidence. There is certainly no objection to the reasoning, and intelligent jurors would be apt to pursue the saxne tx*ain. It is not necessary, however, now to question the propriety of the decision in 11 Ark, .(sujora), to the effect that the court might characterize the evidence in instructions to the j ury, as weale or strong. Whatever evils may have resulted from the practice have been since precluded by the present Constitution, which in seem-, ing jealousy of the influence of the bench, provides {Art. VII, Sec. 23) that “judges shall not charge juries with regard to matters of fact, but shall declare the law.” It is the exclusive province of the jury, now, to judge, in the-first, instance, of the strength or weakness of any facts to support an issue. In accordance with the spirit of the Constitution this court held in Randolph et al., v. McCain, ad., 34 Ark., 703, that it was improper in a judge to indicate to a jury that the remedy by attachment was a harsh one,, as tending to prejudice their feelings. There is equal mischief to be apprehended from the practice of instructing the jury as to the force of the evidence.
Even if such a cautionary instruction were at some times, allowable, we find nothing in this case to justify it. The-evidence does not seem to raise the suspicion that the statements of the defendant, relied upon to prove admissions, were made under such circumstances, as to call for such a,, cautionary charge. The instruction should have left it entirely with the jury to judge of the effect of the statements as it did in the conclusion, but without the preliminary expression of the court regarding its weakness. There was error in giving it as asked for defendant.
We think also that the instruction given, on this point,, by the court of its own motion was too severely qualified.
Statements in the nature of or tending to prove admissions, are always admissible to be considered by the jury, and should be considered, and have such weight as the jury may consider proper, in leading their minds to a conclusion. Juries reasoning for themselves, with their knowledge of human nature, and human motives, and ordinary human conduct, can estimate their force under the circumstances.. The instruction given by the court of its own motion, seems to impose upon the plaintiff the onus of showing that the statements were full and fair, and on occasions to call forth the truth, and upon reflection, before they could be considered at all by the jury.
The true rule applicable to this case is, that admissions of defendant, áre competent proof for the plaintiff that the debt was due in whole or in part, but not conclusive, and it must be left to the jury to determine from the evidence whether the statements amounted to admissions, which they will do upon consideration of the time, place, manner and circumstances of the statements ; and whether there be any rebutting circumstances to show that the admissions, if'made were untrue. And these should be left to them without advice of the court as to the force of the testimony.
On account of the mistaken instructions of the court, as above indicated, and their tendency to mislead the jury to the prejudice of the plaintiff, we think a new tidal should have been granted, and that the court erred in refusing it.
Reverse and remand for further proceedings. | [
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OPINION.
Harrison, J.
vagbanmunicipal courts. When the ordinance for the violation of Lacey was arrested was passed, section 3232 of Gantt’s Diciest, was in force. The said section was as fol-J lows :
“ Section 3232. Municipal corporations shall have power to make and publish from time to time, by-laws, or ordinances, not inconsistent with the laws of the State, for carrying into effect or discharging the powers or duties conferred by the provisions of this Act; and it is hereby made the duty of the municipal corporation to publish such by-laws and ordinances, as shall be necessary to secure such corporations and their inhabitants against injuries by fire, thieves, robbers, burglars and other persons violating- the public peace ; for the suppression of riots and gambling, and indecent and disorderly conduct; for the punishment of all lewd and lascivious behavior in the streets and other places, and they shall have power to make and publish such by-laws and ordinances, not inconsistent with the laws of this State, as to them shall seem necessary to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such corporations and the inhabitants thereof.”
Though vagrancy is not expressly mentioned it conies within the purview of the Statute, for it is an evil as detrimental to the good order and well being of the community as any other within the power and discipline of the corporation, and there can be no question that the' ordinance was authorized by the Statute.
Dill on Munic. Cor., section 334; St. Louis v. Bentz. 11 Mo., 61; Mayor and Aldermen v. Allaire, 14 Ala., 400.
By section 33 of the Act of March 7th, 1875, for the incorporation, organization and government of municipal cor porations, “ all laws, ordinances and orders which had been before passed or adopted ’ ’ by the council were continued in force.
But it is contended that the ordinance was inconsistent with and abrogated by the present constitution, and so not in force when the Act of March 7th, 1875, was passed.
Section 28 of Article VII of the Constitution says :
“The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastards, vagrants, the apprenticeship of minoi’s, the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties.”
It plainly appears by the language here used, considered in connection with the other provisions of the constitution distributing the judicial power of the State among the tribunals created by it, that the jurisdiction given the county court is confined to matters relating to the ‘ ‘ internal improvement and local concerns of the county,” and so far as respects vagrants, extends only to such matters of police regulation as are designed to prevent them from becoming burdensome to the county, or in their nature local or of special concern to the county.
And the object of the power conferred by the Statute upon the Mayor was not an investiture of jurisdiction over violations of public law, but to provide a mere police regulation for the enforcement of good order within the limits of the corporation.
The ordinance was therefore not abrogated by the adoption of the Constitution of 1874, but was a valid and subsisting one at the passage of the Act of March 7th, 1875, and was continued in force by it, and the enforcement of it was within the appellant’s jurisdiction as mayor of the city.
The fifth and sixth- instructions given for the State were erroneous and should not have been given.
The judgment is reversed and the cause remanded. | [
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Eakin, J.
This is a contest for the custody and nurture -of an infant girl of tender age, whose mother died at her birth, and who, from the first two or three days of J ' •existence, has been cared for and kept by the grand-parents. The father now demands the child again, having since married, and being in circumstances ,to provide and care for it.
In deciding such cases upon writs of habeas corpus, the principles adopted in the Chancery Court must govern. The proceedings are special. No rigid rules to regulate the practice have or can be formulated. Only' a few general principles can be taken as guides, subject to which the Chancellor must exercise his judgment upon the peculiar circumstances of the case, and act as humanity, respect for the parental affection, and regard for the infant’s best interests may prompt. All three'should be considered; neither ought to be conclusive.
It is one of the cardinal principles of nature and of that, as against strangers, the father, however poor and bumble, if able to support the child in his own style of life, and of good moral character, cannot, without the most shocking injustice, be deprived of the privilege by any one whatever, however brilliant the advantage he may offer. It-is not enough to consider the interests of the child alone.
As between the father, too, and the mother, or any other near relation of the infant, where sympathies on either side-of the tenderest nature may be relied on with confidence,, the father is generally to be preferred. In the great majority of cases, his greater ability and knowledge of the world renders him the fittest protector, although that is not the test. The preference is conceded to the ties of duty and affection, and attends the primary obligation of the father to maintain, educate and promote the happiness of the child, according to his own best judgment and the means-within his power. Any system of jurisprudence which would enable the Courts, in their discretion and with a view solely to the child’s best interests, to take from him that right and interfere with those duties, would be intolerably tyranical, as well as Utopian.
Nevertheless, keeping these leading principles always in view, there are exceptional cases, .depending on their own circumstances, in which the sovereign power of the State asparens patries, acting; through the Chancellor, has interfered so far as may be necessary to afford the child reasonable protection. It is impossible to define them, further than to say that they should be of such urgency as to overcome all considerations based upon the natural affections and moral obligations of the father; and it may be added that this delicate discretion will be more freely exercised in behalf of one whose ties of affection are next to those of the father himself, upon whom the accompanying moral obligations would devolve in case of the father’s death.
In this case the motherless infant, two days old, was taken by the maternal grand-mother, with the father’s assent, and tenderly guarded through all the perils of infancy. There has been all of a mother’s care, and scarce ly less than a mother’s affection. The child is yet scarcely three yeai’s of age, delicate in health ; she is in a safe-asylum, surrounded by those who may be trusted to guard, her anxiously against pernicious influences, and to do theixbest to instill iixto her mind such prixxciples as will promote her future usefulness and happiness. They, too, plead the-full strength of natux’al affections.
The infant needs female care and guidance of that patient,, ever-watchful nature which is better insured by the natural affection of a grand-mother than by the ixiexperienced efforts of a father, or the sense of duty of the second wife. There is no reason to doubt that the step-mother would do-all that duty might demand of her in that relation, but all disinterested persons would involuxxtax-ily feel that there would be some risk to the infant in the change of her surroundings.
The father has ‘shown himself to be a moral man, with the means of dischai’giixg his parental obligations. Certainly, under the circumstances, if he had been in possession of the child, no Chancellor could have found warrant in equity for taking her away to be placed under the grand-mother’s care. But it cannot be ignored that the case does not present that attitude.
The child was placed where she is by the father’s assent,, and has so remained. By his assent ties have been woven between the grand-mother and grand-daughter, which he is under strong obligation to respect, and which he ought not wantonly and suddexxly to tear asunder. He has shown no urgent necessity for present action, and his appeal to the Circuit Court for aid was not such as to enlist in most hearts any very strong sympathy.
The order of the Court does not preclude him hereafter, as the child becomes more advanced in years, from applying to obtain the custody of her persoxx, or directing hex- ■education. He may see her at all reasonable times ; and at the cost of some deference to and forbearance with his ■child’s grand-father, which it would not compromise his -self-respect to render, he may avoid all unpleasant ren■countres. If not, the Courts are always open to him for a renewed application to be allowed to take the child away.
The Circuit Judge made the order with the parties personally before him, and may have had some means of judging not apparent to us. He seems to have made a temporary arrangement, which commends itself to us as naturally just, and in which, we think, the father, for a while at least, -should acquiesce, until the course of time jwoduces new •circumstances.
Affirm the order. | [
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English, C. J.
On the twenty-third of May, 1878, Jarrett & Co., merchants of Little Rock, who were unable to pay their debts, made a general deed of assignment of all their stock of merchandise, choses in action, and other property, to Patrick Raleigh, as trustee, for the benefit of all their creditors. Raleigh gave bond and took possession of the goods.
Two days after the execution of the deed, Musor Bros., and Mesker Bros., creditors of Jarrett & Co., who, it seems, had recovered judgments against them before a Justice of the Peace, sued out executions upon the judgments, which were placed in the hands of Joseph Griffith, a constable, and he levied them on part of the goods embraced in the deed of assignment, and took possession of them.
Raleigh brought replevin for the goods against Griffith in the Pulaski Circuit Court, the issues made by the pleadings were tried before the Court, and after hearing the evidence, the Court declared as law, that the deed of assignment was fraudulent on its face by reason of the authority given therein to the plaintiff, as trustee, to sell the goods contrary to the express provisions of the Statute, etc., and rendered judgment that the goods replevied be restored to Griffith, or on failure, that he recover their value as found. A new trial was refused and the plaintiff took a bill of exceptions and appealed.
The counsel for appellant has submitted but two propositions :
First. That the assignment act imposes duties on the Probate Court that it cannot perform under the constitution, that the act is indivisible, and being void in part is void in toto.
Second. That the provision of the act, requiring sales to be public, is merely directory, and that where it is plainly to the interest of all parties that the sale be private, the deed may so direct.
It was ruled in Clayton v. Johnson, 36 Ark., 406, that the act was not unconstitutional.
The second proposition presents a question not heretofore decided by this Court.
The third section of the act provides that: ‘ ‘ Said assignee sjlaq j3e reqUire(j sell all the property assigned to him for the payment of debts at public auction within one hundred and twenty days after the execution of the bond required by this act, and shall give at least thirty days notice of the time and place of such sale,” etc. Gantt’s Digest, Sec. 387.
The deed of assignment, after conveying the property to ‘the assignee, provides, “that the party of the second part .(the assignee) shall take possession of all- and singular the property and effects hereby assigned, and sell and dispose of •the same, either, at public or private sale to such person or persons for such prices and on such terms and conditions, and either for cash or upon credit, as in his judgment may appear best and most for the interest of the parties concerned, and convert the same into money,” etc.
It also provides that the assignee “shall first pay and disburse all the' just, reasonable and usual expenses, costs, ■charges and commissions of making, executing and carrying ‘into full effect this assignment and the objects thereof; in ■doing which he is hereby authorized to employ one or more agent or agents, attorney or attorneys, who shall be paid out of the proceeds of sale a reasonable compensation for their services,” etc:
He was also authorized to keep the property insured and to pay the rent of the premises, then occupied by the assignors, until the property and effects, embraced in the trust, should be disposed of, etc.
There was evidence that after the assignment, the goods were marked and the business carried on as before ; the sales were continued at retail in the ordinary course of business.
In providing for the sale of the property, the Statute is ■disregarded in the deed of assignment. The assignee was authorized to sell at private or public sale, and for cash or credit. Under such provisions, it was in the power and discretion of the assignee to prolong the execution and closing of the trust for an indefinite period. The Legislature deemed it expedient, as matter of public policy, to require assignees ■in general deeds of assignments for the benefit of creditors, to sell all property assigned to them for the payment of debts, at public auction, within one hundred and twenty days after the execution of the bond, etc., bn thirty days-notice of the time and place of sale. The power of the Legislature, to make such regulation, has never been judicially questioned.
The Supreme Courts of a number of the States liaveheld, in the absence of any Statute regulating the mode of sale, that a provision in a deed of assignment, authorizing-an assignee to sell by retail or on credit, rendered the deed, fraudulent and void as to creditors, under the general Statute-of fraud, as tending to hinder and delay them in the collection of their claims. See the cases as collected and reviewed in Burrill on Assignments, third Edition, 8,ee. 218 to 225.
There are also contrary decisions in other States, but we deem it needless to undertake to ascertain and decide how the weight of authority is. The Statute prescribes a mode of sale in this State, and dissenting creditors are not bound, by a deed, made in direct contravention of a plain provision of the Statute.
In Clayton v. Johnson, Sup., it was said that inasmuch as the Statute required the assignee to sell the property at-public auction, and within a fixed time, it was not therefore-in the power of an insolvent debtor, by assignment, to tie-up his property in the hands of an assignee for an indefinite period, with the view of coercing any reluctant creditors to-accept a provision which they might dislike.
Affirmed. | [
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English, C. J.
The indictment in this case was returned, into the Circuit Court of Benton county, by the grand jury,, on the twenty-ninth of September, 1881, charging appellant,. W. J. Howard, with grand larceny — stealing a mare and. saddle.
On the same day he was brought into court in custody of the sheriff, informed of the nature of the'charge against, him, and being unable to employ counsel, an attorney of the court was appointed to defend him, and the cause set. for trial on the first of October. On that day he appeared in court in his proper person, as well as by attorney (the-' record states), and not being ready for trial on account of the absence of certain witnesses, the cause was continued until the third of October, on which day he again appeared,, etc., was formally arraigned, pleaded not guilty, was tried by a jury, found guilty, moved for a new trial on the ground that he had not been furnished with a copy of the indictment before arraignment, and the motion overruled.
From a bill of exceptions taken by appellant, it appears-that on the third of October, before he was arraigned, he,, through his attorney, demanded of the court that he have a copy of the indictment, duly certified by the clerk as such,, served upon him before he entered his plea. Whereupon the court asked him if he had, since the filing of the indictment in court, had access to the same, to which he replied,, through his counsel, that he had. Thereupon the court offered to him the original indictment, and refused to order the clerk to make out a certified copy thereof, and have it served upon him, and ordered him to be forthwith arraigned and to plead to the indictment. No fees were tendered, or offered to be tendered, to the clerk for a copy of the indictment, and appellant made no showing that he was unable to* pay the fees of the clerk for such copy.
The only question presented on this appeal is whether the-court below erred, upon the above facts shown by the-record entries, and the bill of exceptions, in refusing to order the clerk to make out a certified copy ®f the indictment,, and that it be served upon appellant before his arraignment and plea.
At common law, the accused, in case of treason or felony, was no‘t entitled to a copy of the indictment; but in offenses inferior to felony, the right of having a copy was,, at all times, admitted. 1 Chitty, Cr. Law, 403-4.
Section 11 of Our Declaration of Rights of 1836 pro- Tided : — “That in all criminal prosecutions the accused hath -a right to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copjr thereof,” etc.
Had there been no legislation to regulate the enforcement of this section of the Declaration of Rights, the courts might have made rules of practice to secure to persons accused of crimes the benefits intended by it, or have looked to Statutes of the British Parliament in aid of or to supply «the defect of the common law, made prior to the fourth year •of James I., so far as they were applicable to our form of .government, etc. Gantt’s Dig., sec. 772.
But on the third of February, 1838, the legislature passed -■an act regulating criminal proceedings, which became Chapter 45 of the Revised Statutes, and contained the following sections, among others :—
“Section 110. — It shall be the duty of the clerk of the •court in which an indictment against any person for a capital offense may be pending, whenever the defendant shall •be in custody, to make put a copy of such indictment, and -cause the same to be delivered to the defendant, or his •counsel, at least forty-eight hours before he shall be arraigned on such indictment; but the defendant may, at his request, be arraigned and tried at any time after the service •of such copy.
“Section 111. — Every person who shall be indicted for an •offense, who shall be in custody, or held by recognizance to appear and answer such indictment, shall, on demand, •and on the payment of the fees allowed by law therefor, be •entitled to a copy of the indictment, and all endorsements ■thereon.”
Section 112 provides for the appointment of counsel for persons accused of felony, who are unable to employ any, etc.
Sections 110 and 111, as above copied, have never been-altered or repealed, and they were carried into Gantt’s Dig. as sections 1825-6. They are also in harmony with the Bill of Bights adopted subsequent to that of 1836.
Section 11 of the Declaration of Bights of 1864, is a literal copy of the same section of the Declaration of Bights of 1836.
Section 8 of the Bill of Bights of 1868, provides that:— “In all criminal prosecutions the accused shall enjoy the right t'o a speedy and public trial, by an impartial jury, etc., and to be informed of the nature and cause of the accusation against him.” The words “and to have a copy thereof,” being omitted. But they were restored in the tenth section of the Declaration of Bights of 1874, which provides that: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, etc., and to be informed of the nature and cause of the accusation against him, and to have a copy thereof.”
It is only in capital cases, when the accused is in custody, that the Statute imposes the duty upon the clerk to out a copy of the indictment, and cause it to be delivered to him, or his counsel, at least forty-eight hours before arraignment. In all other cases, when the accused is in custody, or on recognizance, he has a right to such copy, on application to such clerk, and payment of fees. Dawson v. State, 29 Ark., 116.
Perhaps (though the question is not presented in this case), if it be shown to the court that the accused is unable to pay for a copy, and it has been refused by the clerk for that reason, it would be the duty of the court to order the clerk to furnish it.
The accused is entitled, under provisions of the Declaration of Bights, to counsel, process for witnesses, a trial by jury, and to have a copy of the indictment: but it is within the province of the legislature to regulate the manner- 'of •securing to him these rights.
The Statute regulating the furnishing of a copy of the indictment has been administered in the criminal practice of this State, under all the constitutions, for forty years, and there has been no decision that it was in conflict with the provisions of any of them.
Under Article VI of the Federal Bill of Rights, the accused is entitled to be informed of the nature and cause of the accusation against him.
In United States v. Bickford, 4 Blatchford, 339, the defendant applied to the court for au order, that a copy of the indictment be furnished to him, by the government, before trial, and relied upon the above article. The Court held that no copy of the indictment could be furnished at “the expense of 'the government, inasmuch as the law had made no provision therefor. That was not a capital case. In treason, and other capital offenses, an act of Congress provides that the accused shall be furnished with a copy of the indictment before trial. Rev. Stat. U. 8., Sec. 1033; United States v. Curtis, 4 Mason, 232.
A section of the Revised Statutes of New York, like ours, provided that every person in arrest, or on recognizance, to •answer an indictment, should on demand, and paying the fees allowed by law, be entitled to a copy of the indictment, etc. Colby’s Cr. L., 265.
In People v. Warren, 1 Wheeler’s Cr. Cases, 140, it was ruled that the counsel for the accused had no right to demand of the distl’ict attorney a copy of the indictment; that he must apply to the clerk, whose duty it was to furnish the copy on payment of fees.
Under the Statutes and practice of the several states and the United States, differing somewhat in minor provisions, -the prisoner, (says Mr. Bishop), may have a copy of the indictment furnished at his pleasure, etc. He should be ■careful not to waive the right if he wishes to exercise it, and should keep himself within the terms of the Statute of his own State. 1 Bishop Cr. Pr., sec. 959, and cases cited in notes.
In this case the indictment was short and simple, charging appellant in the usual form, with stealing a mare and ¿saddle. On the day it was found, twenty-ninth September, he was brought into court, informed of the nature of the ■charge, an attorney appointed to defend him, and the cause ■set for trial on the first of October. On that day, it was put over to the third, at his instance, on account of absent witnesses. From the time the indictment was filed in court, to the day of trial, he had access to it. It is not made to ■appear that he or his counsel applied to the clerk for a copy of the indictment, and that it was refused. But on the day of trial, before arraignment, he demanded of the court an •order that he have a copy of the indictment, duly certified by the clerk, served upon him before he entered his plea. It is made to appear, by the bill of exceptions, that no fees were tendered, or offered to be tendered, to the clerk for such copy, and that appellant made no showing that he was unable to pay the fees. The order was demanded of the ■court as a constitutional right, regardless of the Statute reglating the manner in which the right is to be obtained. As demanded, it was refused by the court, and properly on all the facts made to appear.
Neither of the Ohio cases relied on by the counsel for •appellant is applicable to the question presented for decision in this case.
In Smith v. State, 8 Ohio, 294, Smith was convicted for uttering counterfeit money, and moved in arrest of judgment on the ground that he had not been furnished with a copy of the indictment twelve hours before trial as provided by Statute. The court,held that the Statute was directory, and that the accused had waived the right to have a copy of the indictment, by going to trial without demanding it.
In Fouts v. State, 8 Ohio State, 98, Fouts was convicted of a capital offense, and moved in arrest, and assigned as error, that he had not been furnished with a copy of the indictment before trial, It appears from the opinion of the court, that by a constitutional provision, like ours the accused had the right “to demand the nature and cause of the accusation against him, and to have a copy thereof.” It also appears that a Statute of Ohio provided that: — “A copy of the indictment, etc., shall be delivered to every person who may be indicted for an offense, the punishment whereof is capital, at least twelve hours before the-trial. The court held, as in the above case, that the right to a copy was waived by going to trial without claiming it, and so this court ruled in Dawson v. State, Sup.
Affirmed. | [
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